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The Law of Torts: A Treatise on the Principles of Obligations arising from Civil Wrongs in the Common Law: to which is added the Draft of a Code of Civil Wrongs prepared for the Government of India, Fourth Edition (London: Stevens and Sons, 1895). https://oll.libertyfund.org/titles/2123,
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One of Pollock's more substantial works which also contains his draft on a law of torts prepared for the government of India.
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What is a tort? Our first difficulty in dealing with the law of torts is to fix the contents and boundaries of the subject. If we are asked, What are torts? nothing seems easier than to answer by giving examples. Assault, libel, and deceit are torts. Trespass to land and wrongful dealing with goods by trespass, "conversion," or otherwise are torts. The creation of a nuisance to the special prejudice of any person is a tort. Causing harm by negligence is a tort. So is, in certain cases, the mere failure to prevent accidental harm arising from a state of things which one has brought about for one's own purposes. Default or miscarriage in certain occupations of a public nature is likewise a tort, although the same facts may constitute a breach of contract, and may, at the option of the aggrieved party, be treated as such. But we shall have no such easy task if we are required to answer the question, What is a tort?—in other words, what principle or element is common to all the classes of cases we have enumerated, or might enumerate, and also distinguishes them as a whole from other classes of facts giving rise to legal duties and Edition: current; Page: [2] liabilities? It is far from a simple matter to define a contract. But we have this much to start from, that there are two parties, of whom one agrees to terms offered by the other. There are variant and abnormal forms to be dealt with, but this is the normal one. In the law of torts we have no such starting-point, nothing (as it appears at first sight) but a heap of miscellaneous instances. The word itself will plainly not help us. Tort is nothing but the French equivalent of our English word wrong, and was freely used by Spenser as a poetical synonym for it. In common speech everything is a wrong, or wrongful, which is thought to do violence to any right. Manslaying, false witness, breach of covenant, are wrongs in this sense. But thus we should include all breaches of all duties, and therefore should not even be on the road to any distinction that could serve as the base of a legal classification.
History and limits of English classification. In the history of our law, and in its existing authorities, we may find some little help, but, considering the magnitude of the subject, singularly little. The ancient common law knew nothing of large classifications. There were forms of action with their appropriate writs and process, and authorities and traditions whence it was known, or in theory was capable of being known, whether any given set of facts would fit into any and which of these forms. No doubt the forms of action fell, in a manner, into natural classes or groups. But no attempt was made to discover or apply any general principle of arrangement. In modern times, that is to say, since the Restoration, we find a certain rough classification tending to prevail(a). It is assumed, rather than distinctly asserted or established, that actions maintainable in a court of common law must be either actions of contract or actions of tort. This division is exclusive of the real actions for the recovery of Edition: current; Page: [3] land, already becoming obsolete in the seventeenth century, and finally abolished by the Common Law Procedure Act, with which we need not concern ourselves: in the old technical terms, it is, or was, a division of personal actions only. Thus torts are distinguished from one important class of causes of action. Upon the other hand, they are distinguished in the modern law from criminal offences. In the medieval period the procedure whereby redress was obtained for many of the injuries now classified as torts bore plain traces of a criminal or quasi-criminal character, the defendant against whom judgment passed being liable not only to compensate the plaintiff, but to pay a fine to the king. Public and private law were, in truth, but imperfectly distinguished. In the modern law, however, it is settled that a tort, as such, is not a criminal offence. There are various acts which may give rise both to a civil action of tort and to a criminal prosecution, or to the one or the other, at the injured party's option; but the civil suit and the criminal prosecution belong to different jurisdictions, and are guided by different rules of procedure. Torts belong to the subject-matter of Common Pleas as distinguished from Pleas of the Crown. Again, the term and its usage are derived wholly from the Superior Courts of Westminster as they existed before the Judicature Acts. Therefore the law of torts is necessarily confined by the limits within which those Courts exercised their jurisdiction. Divers and weighty affairs of mankind have been dealt with by other Courts in their own fashion of procedure and with their own terminology. These lie wholly outside the common law forms of action and all classifications founded upon them. According to the common understanding of words, breach of trust is a wrong, adultery is a wrong, refusal to pay just compensation for saving a vessel in distress is a Edition: current; Page: [4] wrong. An order may be made compelling restitution from the defaulting trustee; a decree of judicial separation may be pronounced against the unfaithful wife or husband; and payment of reasonable salvage may be enforced against the ship-owner. But that which is remedied in each case is not a tort. The administration of trusts belongs to the law formerly peculiar to the Chancellor's Court; the settlement of matrimonial causes between husband and wife to the law formerly peculiar to the King's Ecclesiastical Courts; and the adjustment of salvage claims to the law formerly peculiar to the Admiral's Court. These things being unknown to the old common law, there can be no question of tort in the technical sense.
Exclusive limits of "tort." Taking into account the fact that in this country the separation of courts and of forms of action has disappeared, though marks of the separate origin and history of every branch of jurisdiction remain, we may now say this much. A tort is an act or omission giving rise, in virtue of the common law jurisdiction of the Court, to a civil remedy which is not an action of contract. To that extent we know what a tort is not. We are secured against a certain number of obvious errors. We shall not imagine (for example) that the Married Women's Property Act of 1882, by providing that husbands and wives cannot sue one another for a tort, has thrown doubt on the possibility of a judicial separation. But whether any definition can be given of a tort beyond the restrictive and negative one that it is a cause of action (that is, of a "personal" action as above noted) which can be sued on in a court of common law without alleging a real or supposed contract, and what, if any, are the common positive characters of the causes of action that can be so sued Edition: current; Page: [5] upon:—these are matters on which our books, ransack them as we will, refuse to utter any certain sound whatever. If the collection of rules which we call the law of torts is founded on any general principles of duty and liability, those principles have nowhere been stated with authority. And, what is yet more remarkable, the want of authoritative principles appears to have been felt as a want by hardly anyone(b).
Are any general principles discoverable? We have no right, perhaps, to assume that by fair means we shall discover any general principles at all. The history of English usage holds out, in itself, no great encouragement. In the earlier period we find a current distinction between wrongs accompanied with violence and wrongs which are not violent; a distinction important for a state of society where open violence is common, but of little use for the arrangement of modern law, though it is still prominent in Blackstone's exposition(c). Later we find a more consciously and carefully made distinction between contracts and causes of action which are not contracts. This is very significant in so far as it marks the ever gaining importance of contract in men's affairs. That which is of contract has come to fill so vast a bulk in the whole frame of modern law that it may, with a fair appearance of equality, be set over against everything which is independent of contract. But this unanalysed remainder is no more accounted for by the dichotomy of the Common Law Procedure Act than it was before. It may have elements of coherence within itself, or it may not. If it has, the law of torts is a body of law capable of being expressed in a systematic form and under appropriate Edition: current; Page: [6] general principles, whether any particular attempt so to express it be successful or not. If not, then there is no such thing as the law of torts in the sense in which there is a law of contracts, or of real property, or of trusts, and when we make use of the name we mean nothing but a collection of miscellaneous topics which, through historical accidents, have never been brought into any real classification.
The genera of torts in English law. The only way to satisfy ourselves on this matter is to examine what are the leading heads of the English law of torts as commonly received. If these point to any sort of common principle, and seem to furnish acceptable lines of construction, we may proceed in the directions indicated; well knowing, indeed, that excrescences, defects, and anomalies will occur, but having some guide for our judgment of what is normal and what is exceptional. Now the civil wrongs for which remedies are provided by the common law of England, or by statutes creating new rights of action under the same jurisdiction, are capable of a threefold division according to their scope and effects. There are wrongs affecting a man in the safety and freedom of his own person, in honour and reputation (which, as men esteem of things near and dear to them, come next after the person, if after it at all), or in his estate, condition, and convenience of life generally: the word estate being here understood in its widest sense, as when we speak of those who are "afflicted or distressed in mind, body, or estate." There are other wrongs which affect specific property, or specific rights in the nature of property: property, again, being taken in so large a sense as to cover possessory rights of every kind. There are yet others which may affect, as the case happens, person or property, either or both. We may exhibit this division by arranging the Edition: current; Page: [7] familiar and typical species of torts in groups, omitting for the present such as are obscure or of little practical moment.
1. Wrongs affecting safety and freedom of the person:
Assault, battery, false imprisonment.
2. Wrongs affecting personal relations in the family:
Seduction, enticing away of servants.
3. Wrongs affecting reputation:
Slander and libel.
4. Wrongs affecting estate generally:
Deceit, slander of title.
Malicious prosecution, conspiracy.
1. Trespass: (a) to land.
(b) to goods.
Conversion and unnamed wrongs ejusdem generis.
Disturbance of easements, &c.
All the acts and omissions here specified are undoubtedly torts, or wrongs in the technical sense of English law. They are the subject of legal redress, and under our old judicial system the primary means of redress would be an action brought in a common law Court, and governed by the rules of common law pleading(d).
We put aside for the moment the various grounds of justification or excuse which may be present, and if present must be allowed for. It will be seen by the student of Roman law that our list includes approximately the same matters(e) as in the Roman system are dealt with (though much less fully than in our own) under the title of obligations ex delicto and quasi ex delicto. To pursue the comparison at this stage, however, would only be to add the difficulties of the Roman classification, which are considerable, to those already on our hands.
Character of wrongful acts, &c. under the several classes. Wilful wrongs. The groups above shown have been formed simply with reference to the effects of the wrongful act or omission. But they appear, on further examination, to have certain distinctive characters with reference to the nature of the act or omission itself. In Group A., generally speaking, Edition: current; Page: [9] the wrong is wilful or wanton. Either the act is intended to do harm, or, being an act evidently likely to cause harm, it is done with reckless indifference to what may befall by reason of it. Either there is deliberate injury, or there is something like the self-seeking indulgence of passion, in contempt of other men's rights and dignity, which the Greeks called ὕβρις. Thus the legal wrongs are such as to be also the object of strong moral condemnation. It is needless to show by instances that violence, evil-speaking, and deceit, have been denounced by righteous men in all ages. If anyone desires to be satisfied of this, he may open Homer or the Psalter at random. What is more, we have here to do with acts of the sort that are next door to crimes. Many of them, in fact, are criminal offences as well as civil wrongs. It is a common border land of criminal and civil, public and private law.
Wrongs apparently unconnected with moral blame. In Group B. this element is at first sight absent, or at any rate indifferent. Whatever may or might be the case in other legal systems, the intention to violate another's rights, or even the knowledge that one is violating them, is not in English law necessary to constitute the wrong of trespass as regards either land or goods, or of conversion as regards goods. On the contrary, an action of trespass—or of ejectment, which is a special form of trespass—has for centuries been a common and convenient method of trying an honestly disputed claim of right. Again, it matters not whether actual harm is done. "By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my licence, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the Edition: current; Page: [10] soil"(f). Nor is this all; for dealing with another man's goods without lawful authority, but under the honest and even reasonable belief that the dealing is lawful, may be an actionable wrong notwithstanding the innocence of the mistake(g). Still less will good intentions afford an excuse. I find a watch lying in the road; intending to do the owner a good turn, I take it to a watchmaker, who to the best of my knowledge is competent, and leave it with him to be cleaned. The task is beyond him, or an incompetent hand is employed on it, and the watch is spoilt in the attempt to restore it. Without question the owner may hold me liable. In one word, the duty which the law of England enforces is an absolute duty not to meddle without lawful authority with land or goods that belong to others. And the same principle applies to rights which, though not exactly property, are analogous to it. There are exceptions, but the burden of proof lies on those who claim their benefit. The law, therefore, is stricter, on the face of things, than morality. There may, in particular circumstances, be doubt what is mine and what is my neighbour's; but the law expects me at my peril to know what is my neighbour's in every case. Reserving the explanation of this to be attempted afterwards, we pass on.
Wrongs of imprudence and omission. In Group C. the acts or omissions complained of have a kind of intermediate character. They are not as a rule wilfully or wantonly harmful; but neither are they morally indifferent, save in a few extreme cases under the third head. The party has for his own purposes done acts, or brought about a state of things, or brought other people into a situation, or taken on himself the conduct of an operation, which a prudent man in his place would know to be Edition: current; Page: [11] attended with certain risks. A man who fails to take order, in things within his control, against risk to others which he actually foresees, or which a man of common sense and competence would in his place foresee, will scarcely be held blameless by the moral judgment of his fellows. Legal liability for negligence and similar wrongs corresponds approximately to the moral censure on this kind of default. The commission of something in itself forbidden by the law, or the omission of a positive and specific legal duty, though without any intention to cause harm, can be and is, at best, not more favourably considered than imprudence if harm happens to come of it; and here too morality will not dissent. In some conditions, indeed, and for special reasons which must be considered later, the legal duty goes beyond the moral one. There are cases of this class in which liability cannot be avoided, even by proof that the utmost diligence in the way of precaution has in fact been used, and yet the party liable has done nothing which the law condemns(h).
Except in these cases, the liability springs from some shortcoming in the care and caution to which, taking human affairs according to the common knowledge and experience of mankind, we deem ourselves entitled at the hands of our fellow-men. There is a point, though not an easily defined one, where such shortcoming gives rise even to criminal liability, as in the case of manslaughter by negligence.
Relation of the law of torts to the semi-ethical precept Alterum non laedere. We have, then, three main divisions of the law of torts. In one of them, which may be said to have a quasi-criminal Edition: current; Page: [12] character, there is a very strong ethical element. In another no such element is apparent. In the third such an element is present, though less manifestly so. Can we find any category of human duties that will approximately cover them all, and bring them into relation with any single principle? Let us turn to one of the best-known sentences in the introductory chapter of the Institutes, copied from a lost work of Ulpian. "Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere." Honeste vivere is a vague phrase enough; it may mean refraining from criminal offences, or possibly general good behaviour in social and family relations. Suum cuique tribuere seems to fit pretty well with the law of property and contract. And what of alterum non laedere? "Thou shalt do no hurt to thy neighbour." Our law of torts, with all its irregularities, has for its main purpose nothing else than the development of this precept(i). This exhibits it, no doubt, as the technical working out of a moral idea by positive law, rather than the systematic application of any distinctly legal conception. But all positive law must pre-suppose a moral standard, and at times more or less openly refer to it; and the more so in proportion as it has or approaches to having a penal character.
Historical anomaly of law of trespass and conversion. The real difficulty of ascribing any rational unity to our law of torts is made by the wide extent of the liabilities mentioned under Group B., and their want of intelligible relation to any moral conception.
A right of property is interfered with "at the peril of Edition: current; Page: [13] the person interfering with it, and whether his interference be for his own use or that of anybody else"(k).
And whether the interference be wilful, or reckless, or innocent but imprudent, or innocent without imprudence, the legal consequences and the form of the remedy are for English justice the same.
Early division of forms of action. The truth is that we have here one of the historical anomalies that abound in English law. Formerly we had a clear distinction in the forms of procedure (the only evidence we have for much of the older theory of the law) between the simple assertion or vindication of title and claims for redress against specific injuries. Of course the same facts would often, at the choice of the party wronged, afford ground for one or the other kind of claim, and the choice would be made for reasons of practical convenience, apart from any scientific or moral ideas. But the distinction was in itself none the less marked.Writs of right and writs of trespass: restitution or punishment. For assertion of title to land there was the writ of right; and the writ of debt, with its somewhat later variety, the writ of detinue, asserted a plaintiff's title to money or goods in a closely corresponding form(l). Injuries to person or property, on the other hand, were matter for the writ of trespass and certain other analogous writs, and (from the 13th century onwards) the later and more comprehensive Edition: current; Page: [14] writ of trespass on the case(m). In the former kind of process, restitution is the object sought; in the latter, some redress or compensation which, there is great reason to believe, was originally understood to be a substitute for private vengeance(n). Now the writs of restitution, as we may collectively call them, were associated with many cumbrous and archaic points of procedure, exposing a plaintiff to incalculable and irrational risk; while the operation of the writs of penal redress was by comparison simple and expeditious. Thus the interest of suitors led to a steady encroachment of the writ of trespass and its kind upon the writ of right and its kind. Not only was the writ of right first thrust into the background by the various writs of assize—forms of possessory real action which are a sort of link between the writ of right and the writ of trespass—and then superseded by the action of ejectment, in form a pure action of trespass; but in like manner the action of detinue was largely supplanted by trover, and debt by assumpsit, both of these new-fashioned remedies being varieties of action on the case(o). In this way the distinction between proceedings taken on a disputed claim of right, and those taken for Edition: current; Page: [15] the redress of injuries where the right was assumed not to be in dispute, became quite obliterated. The forms of action were the sole embodiment of such legal theory as existed; and therefore, as the distinction of remedies was lost, the distinction between the rights which they protected was lost also. By a series of shifts and devices introduced into legal practice for the ease of litigants a great bulk of what really belonged to the law of property was transferred, in forensic usage and thence in the traditional habit of mind of English lawyers, to the law of torts. In a rude state of society the desire of vengeance is measured by the harm actually suffered and not by any consideration of the actor's intention; hence the archaic law of injuries is a law of absolute liabilty for the direct consequences of a man's acts, tempered only by partial exceptions in the hardest cases. These archaic ideas of absolute liability made it easy to use the law of wrongful injuries for trying what were really questions of absolute right; and that practice again tended to the preservation of these same archaic ideas in other departments of the law. It will be observed that in our early forms of action contract, as such, has no place at all(p); an additional proof of the relatively modern character both of the importance of contract in practical life, and of the growth of the corresponding general notion.
Rationalized version of law of trespass. We are now independent of forms of action. Trespass and trover have become historical landmarks, and the question whether detinue is, or was, an action founded on contract or on tort (if the foregoing statement of the history be correct, it was really neither) survives only to Edition: current; Page: [16] raise difficulties in applying certain provisions of the County Courts Act as to the scale of costs in the Superior Courts(q). It would seem, therefore, that a rational exposition of the law of torts is free to get rid of the extraneous matter brought in, as we have shown, by the practical exigency of conditions that no longer exist. At the same time a certain amount of excuse may be made on rational grounds for the place and function of the law of trespass to property in the English system. It appears morally unreasonable, at first sight, to require a man at his peril to know what land and goods are his neighbour's. But it is not so evidently unreasonable to expect him to know what is his own, which is only the statement of the same rule from the other side. A man can but seldom go by pure unwitting misadventure beyond the limits of his own dominion. Either he knows he is not within his legal right, or he takes no heed, or he knows there is a doubt as to his right, but, for causes deemed by him sufficient, he is content to abide (or perhaps intends to provoke) a legal contest by which the doubt may be resolved. In none of these cases can he complain with moral justice of being held to answer for his act. If not wilfully or wantonly injurious, it is done with some want of due circumspection, or else it involves the conscious acceptance of a risk. A form of procedure which attempted to distinguish between these possible cases in detail would for practical purposes hardly be tolerable. Exceptional cases do occur, and may be of real hardship. One can only say that they are thought too exceptional to count in determining the general rule of law. From this point of view we can accept, though we may not actively approve, the inclusion of the morally innocent with the morally guilty trespasses in legal classification.Edition: current; Page: [17]
Analogy of the Roman obligations ex delicto. We may now turn with profit to the comparison of the Roman system with our own. There we find strongly marked the distinction between restitution and penalty, which was apparent in our old forms of action, but became obsolete in the manner above shown. Mr. Moyle(r) thus describes the specific character of obligations ex delicto.
"Such wrongs as the withholding of possession by a defendant who bona fide believes in his own title are not delicts, at any rate in the specific sense in which the term is used in the Institutes; they give rise, it is true, to a right of action, but a right of action is a different thing from an obligatio ex delicto; they are redressed by mere reparation, by the wrong-doer being compelled to put the other in the position in which he would have been had the wrong never been committed. But delicts, as contrasted with them and with contracts, possess three peculiarities. The obligations which arise from them are independent, and do not merely modify obligations already subsisting; they always involve dolus or culpa; and the remedies by which they are redressed are penal."
Dolus and culpa. The Latin dolus, as a technical term, is not properly rendered by "fraud" in English; its meaning is much wider, and answers to what we generally signify by "unlawful intention." Culpa is exactly what we mean by "negligence," the falling short of that care and circumspection which is due from one man to another. The rules specially dealing with this branch have to define the measure of care which the law prescribes as due in the case in hand. The Roman conception of such rules, as worked out by the lawyers of the classical period, is excellently illustrated by the title of the Digest "ad legem Aquiliam," a storehouse of good sense and good law (for the Edition: current; Page: [18] principles are substantially the same as ours) deserving much more attention at the hands of English lawyers than it has received. It is to be observed that the Roman theory was built up on a foundation of archaic materials by no means unlike our own; the compensation of the civilized law stands instead of a primitive retaliation which was still recognized by the law of the Twelve Tables. If then we put aside the English treatment of rights of property as being accounted for by historical accidents, we find that the Roman conception of delict altogether supports (and by a perfectly independent analogy) the conception that appears really to underlie the English law of tort. Liability for delict, or civil wrong in the strict sense, is the result either of wilful injury to others, or wanton disregard of what is due to them (dolus), or of a failure to observe due care and caution which has similar though not intended or expected consequences (culpa). We have,Liability quasi ex delicto. moreover, apart from the law of trespass, an exceptionally stringent rule in certain cases where liability is attached to the befalling of harm without proof of either intention or negligence, as was mentioned under Group C of our provisional scheme. Such is the case of the landowner who keeps on his land an artificial reservoir of water, if the reservoir bursts and floods the lands of his neighbours. Not that it was wrong of him to have a reservoir there, but the law says he must do so at his own risk(s). This kind of liability has its parallel in Roman law, and the obligation is said to be not ex delicto, since true delict involves either dolus or culpa, but quasi ex delicto(t). Whether to avoid the difficulty of proving Edition: current; Page: [19]negligence, or in order to sharpen men's precaution in hazardous matters by not even allowing them, when harm is once done, to prove that they have been diligent, the mere fact of the mischief happening gives birth to the obligation. In the cases of carriers and innkeepers a similar liability is a very ancient part of our law. Whatever the original reason of it may have been as matter of history, we may be sure that it was something quite unlike the reasons of policy governing the modern class of cases of which Rylands v. Fletcher(u) is the type and leading authority; by such reasons, nevertheless, the rules must be defended as part of the modern law, if they can be defended at all.
Summary. On the whole, the result seems to be partly negative, but also not to be barren. It is hardly possible to frame a definition of a tort that will satisfy all the meanings in which the term has been used by persons and in documents of more or less authority in our law, and will at the same time not be wider than any of the authorities warrant. But it appears that this difficulty or impossibility is due to particular anomalies, and not to a total want of general principles. Disregarding those anomalies, we may try to sum up the normal idea of tort somewhat as follows:—
Tort is an act or omission (not being merely the breach of a duty arising out of a personal relation, or undertaken by contract) which is related to harm suffered by a determinate person in one of the following ways:—
A special duty of this last kind may be (i) absolute, (ii) limited to answering for harm which is assignable to negligence.
In some positions a man becomes, so to speak, an insurer to the public against a certain risk, in others he warrants only that all has been done for safety that reasonable care can do.
Connected in principle with these special liabilities, but running through the whole subject, and of constant occurrence in almost every division of it, is the rule that a master is answerable for the acts and defaults of his servants in the course of their employment.
This is indication rather than definition: but to have guiding principles indicated is something. We are entitled, and in a manner bound, not to rush forthwith into a detailed enumeration of the several classes of torts, but to seek first the common principles of liability, and then the common principles of immunity which are known as matter of justification and excuse. There are also special conditions and exceptions belonging only to particular branches, and to be considered, therefore, in the places appropriate to those branches.
Want of generality in early law. There is no express authority that I know of for stating as a general proposition of English law that it is a wrong to do wilful harm to one's neighbour without lawful justification or excuse. Neither is there any express authority for the general proposition that men must perform their contracts. Both principles are in this generality of form or conception, modern, and there was a time when neither was true. Law begins not with authentic general principles, but with enumeration of particular remedies. There is no law of contracts in the modern lawyer's sense, only a list of certain kinds of agreements which may be enforced. Neither is there any law of delicts, but only a list of certain kinds of injury which have certain penalties assigned to them. Thus in the Anglo-Saxon and other early Germanic laws we find minute assessments of the compensation due for hurts to every member of the human body, but there is no general prohibition of personal violence; and a like state of things appears in the fragments of the Twelve Tables(a) Whatever agreements are outside the specified Edition: current; Page: [22] forms of obligation and modes of proof are incapable of enforcement; whatever injuries are not in the table of compensation must go without legal redress. The phrase damnum sine iniuria, which for the modern law is at best insignificant, has meaning and substance enough in such a system. Only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy.
General duty not to do harm in modern law. Such is not the modern way of regarding legal duties or remedies. It is not only certain favoured kinds of agreement that are protected, but all agreements that satisfy certain general conditions are valid and binding, subject to exceptions which are themselves assignable to general principles of justice and policy. So we can be no longer satisfied in the region of tort with a mere enumeration of actionable injuries. The whole modern law of negligence, with its many developments, enforces the duty of fellow-citizens to observe in varying circumstances an appropriate measure of prudence to avoid causing harm to one another. The situations in which we are under no such duty appear at this day not as normal but as exceptional. A man cannot keep shop or walk into the street without being entitled to expect and bound to practise observance in this kind, as we shall more fully see hereafter. If there exists, then, a positive duty to avoid harm, much more must there exist the negative duty of not doing wilful harm; subject, as all general duties must be subject, to the necessary exceptions. The three main heads of duty with which the law of torts is concerned—namely, to abstain from wilful injury, to respect the property of others, and to use due diligence to avoid causing harm to others—are all alike of a comprehensive nature. As our law of contract has been generalized by the doctrine of consideration and the action of assumpsit, Edition: current; Page: [23] so has our law of civil wrongs by the wide and various application of actions on the case(b).
Acts in breach of specific legal duty. The commission of an act specifically forbidden by law, or the omission or failure to perform any duty specifically imposed by law, is generally equivalent to an act done with intent to cause wrongful injury. Where the harm that ensues from the unlawful act or omission is the very kind of harm which it was the aim of the law to prevent (and this is the commonest case), the justice and necessity of this rule are manifest without further comment. Where a statute, for example, expressly lays upon a railway company the duty of fencing and watching a level crossing, this is a legislative declaration of the diligence to be required of the company in providing against harm to passengers using the road. Even if the mischief to be prevented is not such as an ordinary man would foresee as the probable consequence of disobedience, there is some default in the mere fact that the law is disobeyed; at any rate a court of law cannot admit discussion on that point; and the defaulter must take the consequences. The old-fashioned distinction between mala prohibita and mala in se is long since exploded. The simple omission, after notice, to perform a legal duty, may be a wilful offence within the meaning of a penal statute(c). As a matter of general policy, there are so many temptations to neglect public duties of all kinds for the sake of private interest that the addition of this quasi-penal sanction as a motive to their observance appears to be no bad thing. Many public duties, however, are wholly created by special statutes. In such cases it is not an universal proposition that a breach Edition: current; Page: [24] of the duty confers a private right of action on any and every person who suffers particular damage from it. The extent of the liabilities incident to a statutory duty must be ascertained from the scope and terms of the statute itself. Acts of Parliament often contain special provisions for enforcing the duties declared by them, and those provisions may be so framed as to exclude expressly, or by implication, any right of private suit(d). Also there is no cause of action where the damage complained of "is something totally apart from the object of the Act of Parliament," as being evidently outside the mischiefs which it was intended to prevent. What the legislature has declared to be wrongful for a definite purpose cannot be therefore treated as wrongful for another and different purpose(e).
Duty of respecting property. As to the duty of respecting proprietary rights, we have already mentioned that it is an absolute one. Further illustration is reserved for the special treatment of that division of the subject.
Duties of diligence. Then we have the general duty of using due care and caution. What is due care and caution under given circumstances has to be worked out in the special treatment of negligence. Here we may say that, generally speaking, the standard of duty is fixed by reference to what we should expect in the like case from a man of ordinary sense, knowledge, and prudence.
Assumption of skill. Moreover, if the party has taken in hand the conduct of anything requiring special skill and knowledge, we require Edition: current; Page: [25] of him a competent measure of the skill and knowledge usually found in persons who undertake such matters. And this is hardly an addition to the general rule; for a man of common sense knows wherein he is competent and wherein not, and does not take on himself things in which he is incompetent. If a man will drive a carriage, he is bound to have the ordinary competence of a coachman; if he will handle a ship, of a seaman; if he will treat a wound, of a surgeon; if he will lay bricks, of a bricklayer; and so in every case that can be put. Whoever takes on himself to exercise a craft holds himself out as possessing at least the common skill of that craft, and is answerable accordingly. If he fails, it is no excuse that he did the best he, being unskilled, actually could. He must be reasonably skilled at his peril. As the Romans put it, imperitia culpae adnumeratur(f). A good rider who goes out with a horse he had no cause to think ungovernable, and, notwithstanding all he can do to keep his horse in hand, is run away with by the horse, is not liable for what mischief the horse may do before it is brought under control again(g); but if a bad rider is run away with by a horse which a fairly good rider could have kept in order, he will be liable.Exception of necessity. An exception to this principle appears to be admissible in one uncommon but possible kind of circumstances, namely, where in emergency, and to avoid imminent risk, the conduct of something generally entrusted to skilled persons is taken by an unskilled person; as if the crew of a steamer were so disabled by tempest or sickness that the whole conduct of the vessel fell upon an engineer without knowledge of navigation, or a sailor Edition: current; Page: [26]without knowledge of steam-engines. So if the driver and stoker of a train were both disabled, say by sunstroke or lightning, the guard, who is presumably unskilled as concerns driving a locomotive, is evidently not bound to perform the driver's duties. So again, a person who is present at an accident requiring immediate "first aid," no skilled aid being on the spot, must act reasonably according to common knowledge if he acts at all; but he cannot be answerable to the same extent that a surgeon would be. There does not seem to be any distinct authority for such cases; but we may assume it to be law that no more is required of a person in this kind of situation than to make a prudent and reasonable use of such skill, be it much or little, as he actually has.
Liability in relation to consequences of act or default. We shall now consider for what consequences of his acts and defaults a man is liable. When complaint is made that one person has caused harm to another, the first question is whether his act(h) was really the cause of that harm in a sense upon which the law can take action. The harm or loss may be traceable to his act, but the connexion may be, in the accustomed phrase, too remote. The maxim "In iure non remota causa sed proxima spectatur" is Englished in Bacon's constantly cited gloss: "It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree"(i). Liability must be founded on an act which is the "immediate cause" Edition: current; Page: [27] of harm or of injury to a right. Again, there may have been an undoubted wrong, but it may be doubted how much of the harm that ensues is related to the wrongful act as its "immediate cause," and therefore is to be counted in estimating the wrong-doer's liability. The distinction of proximate from remote consequences is needful first to ascertain whether there is any liability at all, and then, if it is established that wrong has been committed, to settle the footing on which compensation for the wrong is to be awarded.Measure of damages. The normal form of compensation for wrongs, as for breaches of contract, in the procedure of our Superior Courts of common law has been the fixing of damages in money by a jury under the direction of a judge. It is the duty of the judge(k) to explain to the jurors, as a matter of law, the footing upon which they should calculate the damages if their verdict is for the plaintiff. This footing or scheme is called the "measure of damages." Thus, in the common case of a breach of contract for the sale of goods, the measure of damages is the difference between the price named in the contract and the market value of the like goods at the time when the contract was broken. In cases of contract there is no trouble in separating the question whether a contract has been made and broken from the question what is the proper measure of damages(l). But in cases of tort the primary question of liability may itself depend, and it often does, on the nearness or remoteness of the harm complained of. Except where we have an absolute duty and an act which manifestly violates it, no clear line can be drawn between the rule of liability and the rule of compensation. Edition: current; Page: [28]The measure of damages, a matter appearing at first sight to belong to the law of remedies more than of "antecedent rights," constantly involves, in the field of torts, points that are in truth of the very substance of the law. It is under the head of "measure of damages" that these for the most part occur in practice, and are familiar to lawyers; but their real connexion with the leading principles of the subject must not be overlooked here.
Meaning of "immediate cause." The meaning of the term "immediate cause" is not capable of perfect or general definition. Even if it had an ascertainable logical meaning, which is more than doubtful, it would not follow that the legal meaning is the same. In fact, our maxim only points out that some consequences are held too remote to be counted. What is the test of remoteness we still have to inquire. The view which I shall endeavour to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed "immediate," "proximate," or, to anticipate a little, "natural and probable," which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was "immediate" or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.
Liability for consequences of wilful act: In the case of wilful wrong-doing we have an act intended to do harm, and harm done by it. The inference of liability from such an act (given the general rule, and assuming no just cause of exception to be present) may Edition: current; Page: [29] seem a plain matter. But even in this first case it is not so plain as it seems. We have to consider the relation of that which the wrong-doer intends to the events which in fact are brought to pass by his deed; a relation which is not constant, nor always evident. A man strikes at another with his fist or a stick, and the blow takes effect as he meant it to do. Here the connexion of act and consequence is plain enough, and the wrongful actor is liable for the resulting hurt.it extends to some consequences not intended. But the consequence may be more than was intended, or different. And it may be different either in respect of the event, or of the person affected. Nym quarrels with Pistol and knocks him down. The blow is not serious in itself, but Pistol falls on a heap of stones which cut and bruise him. Or they are on the bank of a deep ditch; Nym does not mean to put Pistol into the ditch, but his blow throws Pistol off his balance, whereby Pistol does fall into the ditch, and his clothes are spoilt. These are simple cases where a different consequence from that which was intended happens as an incident of the same action. Again, one of Jack Cade's men throws a stone at an alderman. The stone misses the alderman, but strikes and breaks a jug of beer which another citizen is carrying. Or Nym and Bardolph agree to waylay and beat Pistol after dark. Poins comes along the road at the time and place where they expect Pistol; and, taking him for Pistol, Bardolph and Nym seize and beat Poins. Clearly, just as much wrong is done to Poins, and he has the same claim to redress, as if Bardolph and Nym meant to beat Poins, and not Pistol(m). Or, to take an actual and well-known case Edition: current; Page: [30]in our books(n), Shepherd throws a lighted squib into a building full of people, doubtless intending it to do mischief of some kind. It falls near a person who, by an instant and natural act of self-protection, casts it from him. A third person again does the same. In this third flight the squib meets with Scott, strikes him in the face, and explodes, destroying the sight of one eye. Shepherd neither threw the squib at Scott, nor intended such grave harm to any one; but he is none the less liable to Scott. And so in the other cases put, it is clear law that the wrong-doer is liable to make good the consequences, and it is likewise obvious to common sense that he ought to be. He went about to do harm, and having begun an act of wrongful mischief, he cannot stop the risk at his pleasure, nor confine it to the precise objects he laid out, but must abide it fully and to the end.
"Natural consequences:" relation of the rule to the actor's intention. This principle is commonly expressed in the maxim that "a man is presumed to intend the natural consequences of his acts:" a proposition which, with due explanation and within due limits, is acceptable, but which in itself is ambiguous. To start from the simplest case, we may know that the man intended to produce a certain consequence, and did produce it. And we may have independent proof of the intention; as if he announced it beforehand by threats or boasting of what he would do. But oftentimes the act Edition: current; Page: [31] itself is the chief or sole proof of the intention with which it is done. If we see Nym walk up to Pistol and knock him down, we infer that Pistol's fall was intended by Nym as the consequence of the blow. We may be mistaken in this judgment. Possibly Nym is walking in his sleep, and has no real intention at all, at any rate none which can be imputed to Nym awake. But we do naturally infer intention, and the chances are greatly in favour of our being right. So nobody could doubt that when Shepherd threw a lighted squib into a crowded place he expected and meant mischief of some kind to be done by it. Thus far it is a real inference, not a presumption properly so called. Now take the case of Nym knocking Pistol over a bank into the ditch. We will suppose there is nothing (as there well may be nothing but Nym's own worthless assertion) to show whether Nym knew the ditch was there; or, if he did know, whether he meant Pistol to fall into it. These questions are like enough to be insoluble. How shall we deal with them? We shall disregard them. From Nym's point of view his purpose may have been simply to knock Pistol down, or to knock him into the ditch also; from Pistol's point of view the grievance is the same. The wrong-doer cannot call on us to perform a nice discrimination of that which is willed by him from that which is only consequential on the strictly wilful wrong. We say that intention is presumed, meaning that it does not matter whether intention can be proved or not; nay, more, it would in the majority of cases make no difference if the wrong-doer could disprove it. Such an explanation as this—"I did mean to knock you down, but I meant you not to fall into the ditch"—would, even if believed, be the lamest of apologies, and it would no less be a vain excuse in law.
The habit by which we speak of presumption comes Edition: current; Page: [32] probably from the time when,Meaning of "natural and probable" consequence. inasmuch as parties could not give evidence, intention could hardly ever be matter of direct proof. Under the old system of pleading and procedure, Brian C. J. might well say, "the thought of man is not triable"(o). Still there is more in our maxim than this. For although we do not care whether the man intended the particular consequence or not, we have in mind such consequences as he might have intended, or, without exactly intending them, contemplated as possible; so that it would not be absurd to infer as a fact that he either did mean them to ensue, or recklessly put aside the risk of some such consequences ensuing. This is the limit introduced by such terms as "natural"—or more fully, "natural and probable"—consequence(p). What is natural and probable in this sense is commonly, but not always, obvious. There are consequences which no man could, with common sense and observation, help foreseeing. There are others which no human prudence could have foreseen. Between these extremes is a middle region of various probabilities divided by an ideal boundary which will be differently fixed by different opinions; and as we approach this boundary the difficulties increase. There is a point where subsequent events are, according to common understanding, the consequence not of the first wrongful act at all, but of something else that has happened in the meanwhile, though, but for the first act, the event might or could not have been what it was(q). But that point Edition: current; Page: [33]cannot be defined by science or philosophy(r); and even if it could, the definition would not be of much use for the guidance of juries. If English law seems vague on these questions, it is because, in the analysis made necessary by the separation of findings of fact from conclusions of law, it has grappled more closely with the inherent vagueness of facts than any other system. We may now take some illustrations of the rule of "natural and probable consequences" as it is generally accepted. In whatever form we state it, we must remember that it is not a logical definition, but only a guide to the exercise of common sense. The lawyer cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.
Vandenburgh v. Truax. In Vandenburgh v. Truax(s), decided by the Supreme Court of New York in 1847, the plaintiff's servant and the defendant quarrelled in the street. The defendant took hold of the servant, who broke loose from him and ran away; "the defendant took up a pick-axe and followed the boy, who fled into the plaintiff's store, and the defendant pursued him there, with the pick-axe in his hand." In running behind the counter for shelter the servant knocked out the faucet from a cask of wine, whereby the wine ran out and was lost. Here the defendant (whatever the merits of the original quarrel) was clearly a wrong-doer in pursuing the boy; the plaintiff's house was a natural place for his servant to take refuge in, and it was Edition: current; Page: [34] also natural that the servant, "fleeing for his life from a man in hot pursuit armed with a deadly weapon," should, in his hasty movements, do some damage to the plaintiff's property in the shop.
Guille v. Swan. There was a curious earlier case in the same State(t), where one Guille, after going up in a balloon, came down in Swan's garden. A crowd of people, attracted by the balloon, broke into the garden and trod down the vegetables and flowers. Guille's descent was in itself plainly a trespass; and he was held liable not only for the damage done by the balloon itself but for that which was done by the crowd. "If his descent under such circumstances would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for"(u). In both these cases the squib case was commented and relied on. Similarly it has many times been said, and it is undoubted law, that if a man lets loose a dangerous animal in an inhabited place he is liable for all the mischief it may do.
Liability for consequences of trespass. The balloon case illustrates what was observed in the first chapter on the place of trespass in the law of torts. The trespass was not in the common sense wilful; Guille certainly did not mean to come down into Swan's garden, which he did, in fact, with some danger to himself. But a man who goes up in a balloon must know that he has to Edition: current; Page: [35] come down somewhere, and that he cannot be sure of coming down in a place which he is entitled to use for that purpose, or where his descent will cause no damage and excite no objection. Guille's liability was accordingly the same as if the balloon had been under his control, and he had guided it into Swan's garden. If balloons were as manageable as a vessel at sea, and by some accident which could not be ascribed to any fault of the traveller the steering apparatus got out of order, and so the balloon drifted into a neighbour's garden, the result might be different. So, if a landslip carries away my land and house from a hillside on which the house is built, and myself in the house, and leaves all overlying a neighbour's field in the valley, it cannot be said that I am liable for the damage to my neighbour's land; indeed, there is not even a technical trespass, for there is no voluntary act at all. But where trespass to property is committed by a voluntary act, known or not known to be an infringement of another's right, there the trespasser, as regards liability for consequences, is on the same footing as a wilful wrong-doer.
Consequence too remote: Glover v. L. & S. W. Rail. Co. A simple example of a consequence too remote to be ground for liability, though it was part of the incidents following on a wrongful act, is afforded by Glover v. London and South Western Railway Company(v). The plaintiff, being a passenger on the railway, was charged by the company's ticket collector, wrongly as it turned out, with not having a ticket, and was removed from the train by the company's servants with no more force than was necessary for the purpose. He left a pair of race-glasses in the carriage, which were lost; and he sought to hold Edition: current; Page: [36] the company liable not only for the personal assault committed by taking him out of the train, but for the value of these glasses. The Court held without difficulty that the loss was not the "necessary consequence" or "immediate result" of the wrongful act: for there was nothing to show that the plaintiff was prevented from taking his glasses with him, or that he would not have got them if after leaving the carriage he had asked for them.
Question of what is killing in criminal law. In criminal law the question not unfrequently occurs, on a charge of murder or manslaughter, whether a certain act or neglect was the "immediate cause" of the death of the deceased person. We shall not enter here upon the cases on this head; but the comparison of them will be found interesting. They are collected by Sir James Stephen(x).
Liability for negligence depends on probability of consequence, i.e., its capability of being foreseen by a reasonable man. The doctrine of "natural and probable consequence" is most clearly illustrated, however, in the law of negligence. For there the substance of the wrong itself is failure to act with due foresight: it has been defined as "the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do"(y). Now a reasonable man can be guided only by a reasonable estimate of probabilities. If men went about to guard themselves against every risk to themselves or others which might by ingenious conjecture be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behaviour we are to look as Edition: current; Page: [37] the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things. This being the standard, it follows that if in a particular case (not being within certain special and more stringent rules) the harm complained of is not such as a reasonable man in the defendant's place should have foreseen as likely to happen, there is no wrong and no liability. And the statement proposed, though not positively laid down, in Greenland v. Chaplin(z), namely, "that a person is expected to anticipate and guard against all reasonable consequences, but that he is not, by the law of England, expected to anticipate and guard against that which no reasonable man would expect to occur," appears to contain the only rule tenable on principle where the liability is founded solely on negligence. "Mischief which could by no possibility have been foreseen, and which no reasonable person would have anticipated," may be the ground of legal compensation under some rule of exceptional severity, and such rules, for various reasons, exist; but under an ordinary rule of due care and caution it cannot be taken into account.
Examples: We shall now give examples on either side of the line.
Hill v. New River Co. In Hill v. New River Company(a), the defendant company had in the course of their works caused a stream of water to spout up in the middle of a public road, without making any provision, such as fencing or watching it, for the safety of persons using the highway. As the plaintiff's horses and carriage were being driven along the road, the Edition: current; Page: [38] horses shied at the water, dashed across the road, and fell into an open excavation by the roadside which had been made by persons and for purposes unconnected with the water company. It was argued that the immediate cause of the injuries to man, horses, and carriage ensuing upon this fall was not the unlawful act of the water company, but the neglect of the contractors who had made the cutting in leaving it open and unfenced. But the Court held that the "proximate cause" was "the first negligent act which drove the carriage and horses into the excavation." In fact, it was a natural consequence that frightened horses should bolt off the road; it could not be foreseen exactly where they would go off, or what they might run against or fall into. But some such harm as did happen was probable enough, and it was immaterial for the purpose in hand whether the actual state of the ground was temporary or permanent, the work of nature or of man. If the carriage had gone into a river, or over an embankment, or down a precipice, it would scarcely have been possible to raise the doubt.
Williams v. G. W. Rail. Co. Williams v. Great Western Railway Company(b) is a stronger case, if not an extreme one. There were on a portion of the company's line in Denbighshire two level crossings near one another, the railway meeting a carriage-road in one place and a footpath (which branched off from the road) in the other. It was the duty of the company under certain Acts to have gates and a watchman at the road crossing, and a gate or stile at the footpath crossing; but none of these things had been done.
"On the 22nd December, 1871, the plaintiff, a child of four and a-half years old, was found lying on the rails by Edition: current; Page: [39] the footpath, with one foot severed from his body. There was no evidence to show how the child had come there, beyond this, that he had been sent on an errand a few minutes before from the cottage where he lived, which lay by the roadside, at about 300 yards distance from the railway, and farther from it than the point where the footpath diverged from the road. It was suggested on the part of the defendants that he had gone along the road, and then, reaching the railway, had strayed down the line; and on the part of the plaintiff, that he had gone along the open footpath, and was crossing the line when he was knocked down and injured by the passing train."
On these facts it was held that there was evidence proper to go to a jury, and on which they might reasonably find that the accident to the child was caused by the railway company's omission to provide a gate or stile. "One at least of the objects for which a gate or stile is required is to warn people of what is before them, and to make them pause before reaching a dangerous place like a railroad"(c).
Bailiffs of Romney Marsh v. Trinity House. In Bailiffs of Romney Marsh v. Trinity House(d), a Trinity House cutter had by negligent navigation struck on a shoal about three-quarters of a mile outside the plaintiffs' sea-wall. Becoming unmanageable, the vessel was inevitably driven by strong wind and tide against the sea-wall, and did much damage to the wall. It was held without difficulty that the Corporation of the Trinity Edition: current; Page: [40] House was liable (under the ordinary rule of a master's responsibility for his servants, of which hereafter) for this damage, as being the direct consequence of the first default which rendered the vessel unmanageable.
Lynch v. Nurdin. Something like this, but not so simple, was Lynch v. Nurdin(e), where the owner of a horse and cart left them unwatched in the street; some children came up and began playing about the cart, and as one of them, the plaintiff in the cause, was climbing into the cart another pulled the horse's bridle, the horse moved on, and the plaintiff fell down under the wheel of the cart and was hurt. The owner who had left the cart and horse unattended was held liable for this injury. The Court thought it strictly within the province of a jury "to pronounce on all the circumstances, whether the defendant's conduct was wanting in ordinary care, and the harm to the plaintiff such a result of it as might have been expected"(f).
Contrasted cases of non-liability and liability: Cox v. Burbidge, Lee v. Riley. It will be seen that on the whole the disposition of the Courts has been to extend rather than to narrow the range of "natural and probable consequences." A pair of cases at first sight pretty much alike in their facts, but in one of which the claim succeeded, while in the other it failed, will Edition: current; Page: [41] show where the line is drawn. If a horse escapes into a public road and kicks a person who is lawfully on the road, its owner is not liable unless he knew the horse to be vicious(g). He was bound indeed to keep his horse from straying, but it is not an ordinary consequence of a horse being loose on a road that it should kick human beings without provocation. The rule is different however if a horse by reason of a defective gate strays not into the road but into an adjoining field where there are other horses, and kicks one of those horses. In that case the person whose duty it was to maintain the gate is liable to the owner of the injured horse(h).
Metropolitan Rail. Co. v. Jackson. The leading case of Metropolitan Rail. Co. v. Jackson(i) is in truth of this class, though the problem arose and was considered, in form, upon the question whether there was any evidence of negligence. The plaintiff was a passenger in a carriage already over-full. As the train was stopping at a station, he stood up to resist yet other persons who had opened the door and tried to press in. While he was thus standing, and the door was open, the train moved on. He laid his hand on the door-lintel for support, and at the same moment a porter came up, turned off the intruders, and quickly shut the door in the usual manner. The plaintiff's thumb was caught by the door and crushed. After much difference of opinion in the courts below, mainly due to a too literal following of certain previous authorities, the House of Lords unanimously held that, Edition: current; Page: [42] assuming the failure to prevent overcrowding to be negligence on the company's part, the hurt suffered by the plaintiff was not nearly or certainly enough connected with it to give him a cause of action. It was an accident which might no less have happened if the carriage had not been overcrowded at all.
Non-liability for consequences of unusual state of things: Blyth v. Birmingham Waterworks Co. Unusual conditions brought about by severe frost have more than once been the occasion of accidents on which untenable claims for compensation have been founded, the Courts holding that the mishap was not such as the party charged with causing it by his negligence could reasonably be expected to provide against. In the memorable "Crimean winter" of 1854-5 a fire-plug attached to one of the mains of the Birmingham Waterworks Company was deranged by the frost, the expansion of superficial ice forcing out the plug, as it afterwards seemed, and the water from the main being dammed by incrusted ice and snow above. The escaping water found its way through the ground into the cellar of a private house, and the occupier sought to recover from the company for the damage. The Court held that the accident was manifestly an extraordinary one, and beyond any such foresight as could be reasonably required(k). Here nothing was alleged as constituting a wrong on the company's part beyond the mere fact that they did not take extraordinary precautions.
Sharp v. Powell. The later case of Sharp v. Powell(l) goes farther, as the story begins with an act on the defendant's part which Edition: current; Page: [43] was a clear breach of the law. He caused his van to be washed in a public street, contrary to the Metropolitan Police Act. The water ran down a gutter, and would in fact(m) (but for a hard frost which had then set in for some time) have run harmlessly down a grating into the sewer, at a corner some twenty-five yards from where the van was washed. As it happened, the grating was frozen over, the water spread out and froze into a sheet of ice, and a led horse of the plaintiff's slipped thereon and broke its knee. It did not appear that the defendant or his servants knew of the stoppage of the grating. The Court thought the damage was not "within the ordinary consequences"(n) of such an act as the defendant's, not "one which the defendant could fairly be expected to anticipate as likely to ensue from his act"(o): he "could not reasonably be expected to foresee that the water would accumulate and freeze at the spot where the accident happened"(p).
Question, if the same rule holds for consequences of wilful wrong: Clark v. Chambers. Some doubt appears to be cast on the rule thus laid down—which, it is submitted, is the right one—by what was said a few years later in Clark v. Chambers(q), though not by the decision itself. This case raises the question whether the liability of a wrong-doer may not extend even to remote and unlikely consequences where the original wrong is a wilful trespass, or consists in the unlawful or careless use of a dangerous instrument. The main facts were as follows:—
1. The defendant without authority set a barrier, partly armed with spikes (chevaux-de-frise), across a road subject to other persons' rights of way. An opening was at most Edition: current; Page: [44] times left in the middle of the barrier, and was there at the time when the mischief happened.
2. The plaintiff went after dark along this road and through the opening, by the invitation of the occupier of one of the houses to which the right of using the road belonged, and in order to go to that house.
3. Some one, not the defendant or any one authorized by him, had removed one of the chevaux-de-frise barriers, and set it on end on the footpath. It was suggested, but not proved, that this was done by a person entitled to use the road, in exercise of his right to remove the unlawful obstruction.
4. Returning later in the evening from his friend's house, the plaintiff, after safely passing through the central opening above mentioned, turned on to the footpath. He there came against the chevaux-de-frise thus displaced (which he could not see, the night being very dark), and one of the spikes put out his eye.
After a verdict for the plaintiff the case was reserved for further consideration, and the Court(r) held that the damage was nearly enough connected with the defendant's first wrongful act—namely, obstructing the road with instruments dangerous to people lawfully using it—for the plaintiff to be entitled to judgment. It is not obvious why and how, if the consequence in Clark v. Chambers was natural and probable enough to justify a verdict for the plaintiff, that in Sharp v. Powell was too remote to be submitted to a jury at all. The Court did not dispute the correctness of the judgments in Sharp v. Powell "as applicable to the circumstances of the particular case;" but their Edition: current; Page: [45] final observations(s) certainly tend to the opinion that in a case of active wrong-doing the rule is different. Such an opinion, it is submitted, is against the general weight of authority, and against the principles underlying the authorities(t). However, their conclusion may be supported, and may have been to some extent determined, by the special rule imposing the duty of what has been called "consummate caution" on persons dealing with dangerous instruments.
Consequences natural in kind though not in circumstance. Perhaps the real solution is that here, as in Hill v. New River Co.(tt), the kind of harm which in fact happened might have been expected, though the precise manner in which it happened was determined by an extraneous accident. If in this case the spikes had not been disturbed, and the plaintiff had in the dark missed the free space left in the barrier, and run against the spiked part of it, the defendant's liability could not have been disputed. As it was, the obstruction was not exactly where the defendant had put it, but still it was an obstruction to that road which had been wrongfully brought there by him. He had put it in the plaintiff's way no less than Shepherd put his squib in the way of striking Scott; whereas in Sharp v. Powell the mischief was not of a kind which the defendant had any reason to foresee.
The turn taken by the discussion in Clark v. Chambers was, in this view, unnecessary, and it is to be regretted that a considered judgment was delivered in a form tending to unsettle an accepted rule without putting anything definite in its place. On the whole, I submit that, whether Clark v. Chambers can stand with it or not, both principle Edition: current; Page: [46] and the current of authority concur to maintain the law as declared in Sharp v. Powell.
Damages for "nervous or mental shock" whether too remote. Where a wrongful or negligent act of A., threatening Z. with immediate bodily hurt, but not causing such hurt, produces in Z. a sudden terror or "nervous shock" from which bodily illness afterwards ensues, is this damage too remote to enter into the measure of damages if A.'s act was an absolute wrong, or to give Z. a cause of action if actual damage is the gist of the action? The Judicial Committee decided in 1888(u) that such consequences are too remote; but it is submitted that the decision is not satisfactory. A husband and wife were driving in a buggy across a level railway crossing, and, through the obvious and admitted negligence of the gatekeeper, the buggy was nearly but not quite run down by a train; the husband "got the buggy across the line, so that the train, which was going at a rapid speed, passed close to the back of it and did not touch it." The wife then and there fainted, and it was proved to the satisfaction of the Court below "that she received a severe nervous shock from the fright, and that the illness from which she afterwards suffered was the consequence of the fright." It may be conceded that the passion of fear, or any other emotion of the mind, however painful and distressing it be, and however reasonable the apprehension which causes it, cannot in itself be regarded as measurable temporal damage; and that the judgment appealed from, if and so far as it purported to allow any distinct damages for "mental injuries"(x), was erroneous. But their Lordships seem to have treated this as obviously involving the further proposition that physical Edition: current; Page: [47] illness caused by reasonable fear is on the same footing. This does not follow. The true question would seem to be whether the fear in which the plaintiff was put by the defendant's wrongful or negligent conduct was such as, in the circumstances, would naturally be suffered by a person of ordinary courage and temper, and such as might thereupon naturally and probably lead, in the plaintiff's case(y), to the physical effects complained of. Fear taken alone falls short of being actual damage, not because it is a remote or unlikely consequence, but because it can be proved and measured only by physical effects. The opinion of the Judicial Committee, outside the colony of Victoria, is as extra-judicial as the contrary and (it is submitted) better opinion expressed in two places(z) by Sir James Stephen as to the possible commission of murder or manslaughter by the wilful or reckless infliction of "nervous shock," or the later contrary decisions in Ireland and New York(a). And if the reasoning of the Judicial Committee be correct, it becomes rather difficult to see on what principle assault without battery is an actionable wrong(a).
Personal status, as a rule, immaterial in law of tort: but capacity in fact may be material. In the law of contract various grounds of personal disability have to be considered with some care. Infants, married women, lunatics, are in different degrees and for different reasons incapable of the duties and rights arising out of contracts. In the law of tort it is otherwise. Generally speaking, there is no limit to personal capacity either in becoming liable for civil injuries, or in the power of obtaining redress for them. It seems on principle that where a particular intention, knowledge, or state of mind in the person charged as a wrong-doer is an element, as it sometimes is, in constituting the alleged wrong, the age and mental capacity of the person may and should be taken into account (along with other relevant circumstances) in order to ascertain as a fact whether that intention, knowledge, or state of mind was present. But in every case it would be a question of fact, and no exception to the general rule would be established or propounded(a). An idiot would scarcely be held answerable for incoherent words of vituperation, though, if uttered by a sane man, Edition: current; Page: [49] they might be slander. But this would not help a monomaniac who should write libellous post-cards to all the people who had refused or neglected, say to supply him with funds to recover the Crown of England. The amount of damages recovered might be reduced by reason of the evident insignificance of such libels; but that would be all. Again, a mere child could not be held accountable for not using the discretion of a man; but an infant is certainly liable for all wrongs of omission as well as of commission in matters where he was, in the common phrase, old enough to know better. It is a matter of common sense, just as we do not expect of a blind man the same actions or readiness to act as of a seeing man.
Partial or apparent exceptions: There exist partial exceptions, however, in the case of convicts and alien enemies, and apparent exceptions as to infants and married women.
Convicts and alien enemies. A convicted felon whose sentence is in force and unexpired, and who is not "lawfully at large under any licence," cannot sue "for the recovery of any property, debt, or damage whatsoever"(b). An alien enemy cannot sue in his own right in any English court. Nor is the operation of the Statute of Limitations suspended, it seems, by the personal disability(c).
Infants: contract not to be indirectly enforced by suing in tort. With regard to infants, there were certain cases under the old system of pleading in which there was an option to sue for breach of contract or for a tort. In such a case an infant could not be made liable for what was in truth a Edition: current; Page: [50] breach of contract by framing the action ex delicto. "You cannot convert a contract into a tort to enable you to sue an infant: Jennings v. Rundall"(d). And the principle goes to this extent, that no action lies against an infant for a fraud whereby he has induced a person to contract with him, such as a false statement that he is of full age(e).
Limits of the rule: independent wrongs. But where an infant commits a wrong of which a contract, or the obtaining of something under a contract, is the occasion, but only the occasion, he is liable. In Burnard v. Haggis(f), the defendant in the County Court, an infant undergraduate, hired a horse for riding on the express condition that it was not to be used for jumping; he went out with a friend who rode this horse by his desire, and, making a cut across country, they jumped divers hedges and ditches, and the horse staked itself on a fence and was fatally injured. Having thus caused the horse to be used in a manner wholly unauthorized by its owner, the defendant was held to have committed a mere trespass or "independent tort"(g), for which he was liable to the owner apart from any question of contract, just as if he had mounted and ridden the horse without hiring or leave.
Infant shall not take advantage of his own fraud. Also it has been established by various decisions in the Court of Chancery that "an infant cannot take advantage of his own fraud:" that is, he may be compelled to specific Edition: current; Page: [51] restitution, where that is possible, of anything he has obtained by deceit, nor can he hold other persons liable for acts done on the faith of his false statement, which would have been duly done if the statement had been true(h). Thus, where an infant had obtained a lease of a furnished house by representing himself as a responsible person and of full age, the lease was declared void, and the lessor to be entitled to delivery of possession, and to an injunction to restrain the lessee from dealing with the furniture and effects, but not to damages for use and occupation (h).
Married women: the common law. As to married women, a married woman was by the common law incapable of binding herself by contract, and therefore, like an infant, she could not be made liable as for a wrong in an action for deceit or the like, when this would have in substance amounted to making her liable on a contract(i). In other cases of wrong she was not under any disability, nor had she any immunity; but she had to sue and be sued jointly with her husband, inasmuch as her property was the husband's; and the husband got the benefit of a favourable judgment and was liable to the consequences of an adverse one.
Married Women's Property Act, 1882. Since the Married Women's Property Act, 1882, a married woman can acquire and hold separate property in her own name, and sue and be sued without joining her husband. If she is sued alone, damages and costs recovered against her are payable out of her separate property(k). Edition: current; Page: [52] If a husband and wife sue jointly for personal injuries to the wife, the damages recovered are the wife's separate property(l). She may sue her own husband, if necessary, "for the protection and security of her own separate property"; but otherwise actions for a tort between husband and wife cannot be entertained(m). That is, a wife may sue her husband in an action which under the old forms of pleading would have been trover for the recovery of her goods, or for a trespass or nuisance to land held by her as her separate property; but she may not sue him in a civil action for a personal wrong, such as assault, libel, or injury by negligence. Divorce does not enable the divorced wife to sue her husband for a personal tort committed during the coverture(n). There is not anything in the Act to prevent a husband and wife from suing or being sued jointly according to the old practice; the husband is not relieved from liability for wrongs committed by the wife during coverture, and may still be joined as a defendant at need. If it were not so, a married woman having no separate property might commit wrongs with impunity(o) If husband and wife are now jointly sued for the wife's wrong, and execution issues against the husband's property, a question may possibly be raised whether the husband is Edition: current; Page: [53] entitled to indemnity from the wife's separate property, if in fact she has any(p).
Common law liability of infants and married women limited, according to some, to wrongs contra pacem. There is some authority for the doctrine that by the common law both infants(q) and married women(r) are liable only for "actual torts" such as trespass, which were formerly laid in pleading as contra pacem, and are not in any case liable for torts in the nature of deceit, or, in the old phrase, in actions which "sound in deceit." But this does not seem acceptable on principle.
Corporations. As to corporations, it is evident that personal injuries, in the sense of bodily harm or offence, cannot be inflicted upon them. Neither can a corporation be injured in respect of merely personal reputation. It can sue for a libel affecting property, but not for a libel purporting to charge the corporation as a whole with corruption, for example. The individual officers or members of the corporation whose action is reflected on are the only proper plaintiffs in such a case(s). It would seem at first sight, and it was long supposed, that a corporation also cannot be liable for personal wrongs(t). But this is Edition: current; Page: [54] really part of the larger question of the liability of principals and employers for the conduct of persons employed by them; for a corporation can act and become liable only through its agents or servants. In that connexion we recur to the matter further on.
The greatest difficulty has been (and by some good authorities still is) felt in those kinds of cases where "malice in fact"—actual ill-will or evil motive—has to be proved.
Responsibility of public bodies for management of works, &c. under their control. Where bodies of persons, incorporated or not, are intrusted with the management and maintenance of works, or the performance of other duties of a public nature, they are in their corporate or quasi-corporate capacity responsible for the proper conduct of their undertakings no less than if they were private owners: and this whether they derive any profit from the undertaking or not(u).
The same principle has been applied to the management of a public harbour by the executive government of a British colony(x). The rule is subject, of course, to the special statutory provisions as to liability and remedies that may exist in any particular case(y).
Effect of death of either party. Actio personalis moritur cum persona. We have next to consider the effect produced on liability for a wrong by the death of either the person wronged or the wrong-doer. This is one of the least rational parts of our law. The common law maxim is actio personalis moritur cum persona, or the right of action for tort is put an end to by the death of either party, even if an action has been commenced in his lifetime. This maxim "is one of some antiquity, but its origin is obscure and post-classical"(z). Causes of action on a contract are quite as much "personal" in the technical sense, but, with the exception of promises of marriage, and (it seems) injuries to the person by negligent performance of a contract, the maxim does not apply to these. In cases of tort not falling within statutory exceptions, to be presently mentioned, the estate of the person wronged has no claim, and that of the wrong-doer is not liable. Where an action on a tort is referred to arbitration, and one of the parties dies after the hearing but before the making of the award, the cause of action is extinguished notwithstanding a clause in the order of reference providing for delivery of the award to the personal representatives of a party dying before the award is made. Such a clause is insensible with regard to a cause of action in tort; the agreement for reference being directed merely to the mode of trial, and not extending to alter the rights of the parties(a). A very similar rule existed in Roman law, with the modification that the inheritance of a man who had increased his estate by dolus was bound to restore the profit so gained, and that in some cases heirs might sue but could not be sued(b). Whether Edition: current; Page: [56] derived from a hasty following of the Roman rule or otherwise, the common law knew no such variations; the maxim was absolute. At one time it may have been justified by the vindictive and quasi-criminal character of suits for civil injuries. A process which is still felt to be a substitute for private war may seem incapable of being continued on behalf of or against a dead man's estate, an impersonal abstraction represented no doubt by one or more living persons, but by persons who need not be of kin to the deceased. Some such feeling seems to be implied in the dictum, "If one doth a trespass to me, and dieth, the action is dead also, because it should be inconvenient to recover against one who was not party to the wrong"(c). Indeed, the survival of a cause of action was the exception in the earliest English law(d).
A barbarous rule. But when once the notion of vengeance has been put aside, and that of compensation substituted, the rule actio personalis moritur cum persona seems to be without plausible ground. First, as to the liability, it is impossible to see why a wrong-doer's estate should ever be exempted from making satisfaction for his wrongs. It is better that the residuary legatee should be to some extent cut short than that the person wronged should be deprived of redress. The legatee can in any case take only what prior claims leave for him, and there would be no hardship in his taking subject to all obligations, ex delicto as well as ex contractu, to which his testator was liable. Still less could the reversal of the rule be a just cause of complaint in the Edition: current; Page: [57] case of intestate succession. Then as to the right: it is supposed that personal injuries cause no damage to a man's estate, and therefore after his death the wrong-doer has nothing to account for. But this is oftentimes not so in fact. And, in any case, why should the law, contrary to its own principles and maxims in other departments, presume it, in favour of the wrong-doer, so to be? Here one may almost say that omnia praesumuntur pro spoliatore. Personal wrongs, it is allowed, may "operate to the temporal injury" of the personal estate, but without express allegation the Court will not intend it(e), though in the case of a wrong not strictly personal it is enough if such damage appears by necessary implication(f). The burden should rather lie on the wrong-doer to show that the estate has not suffered appreciable damage. But it is needless to pursue the argument of principle against a rule which has been made at all tolerable for a civilized country only by a series of exceptions(g); of which presently.
Extension of the rule in Osborn v. Gillett. The rule has even been pushed to this extent, that the death of a human being cannot be a cause of action in a civil Court for a person not claiming through or representing the person killed, who in the case of an injury short of death would have been entitled to sue. A master can sue for injuries done to his servant by a wrongful act or neglect, whereby the service of the servant is lost to the master. But if the injury causes the servant's death, it is held that the master's right to compensation is gone(h). We must say it is so held, as the decision has not been Edition: current; Page: [58] overruled, or, that I know of, judicially questioned. But the dissent of Lord Bramwell is enough to throw doubt upon it. The previous authorities are inconclusive, and the reasoning of Lord Bramwell's (then Baron Bramwell's) judgment is, I submit, unanswerable on principle. At all events "actio personalis moritur cum persona" will not serve in this case. Here the person who dies is the servant; his own cause of action dies with him, according to the maxim, and his executors cannot sue for the benefit of his estate(i). But the master's cause of action is altogether a different one. He does not represent or claim through the servant; he sues in his own right, for another injury, on another estimation of damage; the two actions are independent, and recovery in the one action is no bar to recovery in the other. Nothing but the want of positive authority can be shown against the action being maintainable. And if want of authority were fatal, more than one modern addition to the resources of the Common Law must have been rejected(k). It is alleged, indeed, that "the policy of the law refuses to recognize the interest of one person in the death of another"(l)—a reason which would make life insurance and leases for lives illegal. Another and equally absurd reason sometimes given for the rule is that the value of human life is too great to be estimated in money: in other words, because the compensation cannot be adequate there shall be no compensation Edition: current; Page: [59] at all(m). It is true that the action by a master for loss of service consequential on a wrong done to his servant belongs to a somewhat archaic head of the law which has now become almost anomalous; perhaps it is not too much to say that in our own time the Courts have discouraged it. This we shall see in its due place. But that is no sufficient reason for discouraging the action in a particular case by straining the application of a rule in itself absurd. Osborn v. Gillett stands in the book, and we cannot actually say it is not law; but one would like to see the point reconsidered by the Court of Appeal(n).
Exceptions: Statutes of Ed. III. giving executors right of suit for trespasses. We now proceed to the exceptions. The first amendment was made as long ago as 1330, by the statute 4 Ed. III. c. 7, of which the English version runs thus:
Item, whereas in times past executors have not had actions for a trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.
The right was expressly extended to executors of executors by 25 Ed. III. st. 5, c. 5, and was construed to extend to administrators(o). It was held not to include injuries to the person or to the testator's freehold, and it does not include personal defamation, but it seems to extend to all Edition: current; Page: [60] other wrongs where special damage to the personal estate is shown(p).
Of Will. IV. as to injuries to property. Then by 3 & 4 Will. IV. c. 42 (ad 1833) actionable injuries to the real estate of any person committed within six calendar months before his death may be sued upon by his personal representatives, for the benefit of his personal estate, within one year after his death: and a man's estate can be made liable, through his personal representatives, for wrongs done by him within six calendar months before his death "to another in respect of his property, real or personal." In this latter case the action must be brought against the wrong-doer's representatives within six months after they have entered on their office. Under this statute the executor of a tenant for life has been held liable to the remainderman for waste committed during the tenancy(q).
No right of action for damage to personal estate consequential on personal injury. Nothing in these statutes affects the case of a personal injury causing death, for which according to the maxim there is no remedy at all. It has been attempted to maintain that damage to the personal estate by reason of a personal injury, such as expenses of medical attendance, and loss of income through inability to work or attend to business, will bring the case within the statute of Edward III. But it is held that "where the cause of action is in substance an injury to the person," an action by personal representatives cannot be admitted on this ground: the original wrong itself, not only its consequences, must be an injury to property(r).Edition: current; Page: [61]
Lord Campbell's Act: peculiar rights created by it. Railway accidents, towards the middle of the present century, brought the hardship of the common law rule into prominence. A man who was maimed or reduced to imbecility by the negligence of a railway company's servants might recover heavy damages. If he died of his injuries, or was killed on the spot, his family might be ruined, but there was no remedy. This state of things brought about the passing of Lord Campbell's Act (9 & 10 Vict. c. 93, ad 1846), a statute extremely characteristic of English legislation(s). Instead of abolishing the barbarous rule which was the root of the mischief complained of, it created a new and anomalous kind of right and remedy by way of exception. It is entitled "An Act for compensating the Families of Persons killed by Accidents": it confers a right of action on the personal representatives of a person whose death has been caused by a wrongful act, neglect, or default such that if death had not ensued that person might have maintained an action; but the right conferred is not for the benefit of the personal estate, but "for the benefit of the wife, husband, parent, and child(t) of the Edition: current; Page: [62] person whose death shall have been so caused." The action must be commenced within twelve calendar months after the death of the deceased person (s. 3). Damages have to be assessed according to the injury resulting to the parties for whose benefit the action is brought, and apportioned between them by the jury(u). The nominal plaintiff must deliver to the defendant particulars of those parties and of the nature of the claim made on their behalf.
By an amending Act of 1864, 27 & 28 Vict. c. 95, if there is no personal representative of the person whose death has been caused, or if no action is brought by personal representatives within six months, all or any of the persons for whose benefit the right of action is given by Lord Campbell's Act may sue in their own names(x).
Construction of Lord Campbell's Act. The principal Act is inaccurately entitled to begin with (for to a lay reader "accidents" might seem to include inevitable accidents, and again, "accident" does not include wilful wrongs, to which the Act does apply); nor is this promise much bettered by the performance of its enacting part. It is certain that the right of action, or at any rate the right to compensation, given by the statute is not the same which the person killed would have had if he had lived to sue for his injuries. It is no answer to a claim under Lord Campbell's Act to show that the deceased would not himself have sustained pecuniary loss. "The Edition: current; Page: [63] statute . . . gives to the personal representative a cause of action beyond that which the deceased would have had if he had survived, and based on a different principle"(y). But "the statute does not in terms say on what principle the action it gives is to be maintainable, nor on what principle the damages are to be assessed; and the only way to ascertain what it does, is to show what it does not mean"(z). It has been decided that some appreciable pecuniary loss to the beneficiaries (so we may conveniently call the parties for whose benefit the right is created) must be shown; they cannot maintain an action for nominal damages(a); nor recover what is called solatium in respect of the bodily hurt and suffering of the deceased, or their own affliction(b); they must show "a reasonable expectation of pecuniary benefit, as of right or otherwise," had the deceased remained alive. But a legal right to receive benefit from him need not be shown(c). Thus, the fact that a grown-up son has been in the constant habit of making presents of money and other things to his parents, or even has occasionally helped them in bad times(d), is a ground of expectation to be taken into account in assessing the loss sustained. Funeral and mourning expenses, however, not being the loss of any benefit that could have been had by the deceased person's continuing in life, are not admissible(e).Edition: current; Page: [64]
Interests of survivors distinct. The interests conferred by the Act on the several beneficiaries are distinct. It is no answer to a claim on behalf of some of a man's children who are left poorer that all his children, taken as an undivided class, have got the whole of his property(f).
The statutory cause of action is in substitution, not cumulative. It is said that the Act does not transfer to representatives the right of action which the person killed would have had, "but gives to the representative a totally new right of action on different principles"(g). Nevertheless the cause of action is so far the same that if a person who ultimately dies of injuries caused by wrongful act or neglect has accepted satisfaction for them in his lifetime, an action under Lord Campbell's Act is not afterwards maintainable(h). For the injury sued on must, in the words of the Act, be "such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof": and this must mean that he might immediately before his death have maintained an action, which, if he had already recovered or accepted compensation, he could not do.
Scottish and American laws. In Scotland, as we have incidentally seen, the surviving kindred are entitled by the common law to compensation in these cases, not only to the extent of actual damage, but by way of solatium. In the United States there exist almost everywhere statutes generally similar to Lord Campbell's Act; but they differ considerably in details Edition: current; Page: [65] from that Act and from one another(i). The tendency seems to be to confer on the survivors, both in legislation and in judicial construction, larger rights than in England.
Right to follow property wrongfully taken or converted as against wrong-doer's estate. In one class of cases there is a right to recover against a wrong-doer's estate, notwithstanding the maxim of actio personalis, yet not so as to constitute a formal exception. When it comes to the point of direct conflict, the maxim has to prevail.
As Lord Mansfield stated the rule, "where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor"(k). Or, as Bowen L. J. has more fully expressed it, the cases under this head are those "in which property, or the proceeds or value of property, belonging to another, have been appropriated by the deceased person and added to his own estate or moneys." In such cases, inasmuch as the action brought by the true owner, in whatever form, is in substance to recover property, the action does not die with the person, but "the property or the proceeds or value which, in the lifetime of the wrong-doer, could have been recovered from him, can be traced after his death to his assets" (by suing the personal representatives) "and recaptured by the rightful owner there." But this rule is limited to the recovery of specific acquisitions or their value. It does not include the recovery of damages, as such, for a wrong, though the wrong may have increased the wrong-doer's estate in the sense of being useful to him or saving him expense(l).Edition: current; Page: [66]
The rule limited to recovery of specific property or its value: Phillips v. Homfray. If A. wrongfully gets and carries away coal from a mine under B.'s land, and B. sues for the value of the coal and damages, and inquiries are directed, pending which A. dies, B. is entitled as against A.'s estate to the value of the coal wrongfully taken, but not to damages for the use of the passages through which the coal was carried out, nor for the injury to the mines or the surface of the ground consequent on A.'s workings(h).
Again, A., a manufacturer, fouls a stream with refuse to the damage of B., a lower riparian owner; B. sues A., and pending the action, and more than six months after its commencement(i), A. dies. B. has no cause of action against A.'s representatives, for there has been no specific benefit to A.'s estate, only a wrong for which B. might in A'.s lifetime have recovered unliquidated damages(k).
The like law holds of a director of a company who has committed himself to false representations in the prospectus, whereby persons have been induced to take shares, and have acquired a right of suit against the issuers. If he dies before or pending such a suit, his estate is not liable(l). In short, this right against the executors or administrators of a wrong-doer can be maintained only if there is "some beneficial property or value capable of being measured, followed, and recovered"(m). For the rest, the dicta of the late Sir George Jessel and of the Lords Justices are such as to make it evident that the maxim which they felt bound to enforce was far from commanding their approval.
Command of principal does not excuse agent's wrong. Whoever commits a wrong is liable for it himself. It is no excuse that he was acting, as an agent or servant, on behalf and for the benefit of another(n). But that other may well be also liable: and in many cases a man is held answerable for wrongs not committed by himself. The rules of general application in this kind are those concerning the liability of a principal for his agent, and of a master for his servant. Under certain conditions responsibility goes farther, and a man may have to answer for wrongs which, as regards the immediate cause of the damage, are not those of either his agents or his servants. Thus we have cases where a man is subject to a positive duty, and is held liable for failure to perform it.Cases of absolute positive duty distinguished: Here, the absolute character of the duty being once established, the question is not by whose hand an unsuccessful attempt was made, whether that of the party himself, of his servant, or of an "independent contractor"(o), but whether the duty has been adequately performed or not. If it has, there is nothing more to be considered, and liability, if any, must be sought in some other quarter(p). If not, the non-performance in itself, not the causes or conditions of non-performance, is the ground of liability. Special duties created by statute, as conditions attached to the grant of exceptional rights or otherwise, afford the chief examples of this kind. Here the liability attaches, irrespective of any question of agency or personal negligence, if and Edition: current; Page: [68] when the conditions imposed by the legislature are not satisfied(q).
also duties in nature of warranty. There occur likewise, though as an exception, duties of this kind imposed by the common law. Such are the duties of common carriers, of owners of dangerous animals or other things involving, by their nature or position, special risk of harm to their neighbours; and such, to a limited extent, is the duty of occupiers of fixed property to have it in reasonably safe condition and repair, so far as that end can be assured by the due care on the part not only of themselves and their servants, but of all concerned.
The degrees of responsibility may be thus arranged, beginning with the mildest:
Modes of liability for wrongful acts, &c. of others. Apart from the cases of exceptional duty where the responsibility is in the nature of insurance or warranty, a man may be liable for another's wrong—
(1) As having authorized or ratified that particular wrong:
(2) As standing to the other person in a relation making him answerable for wrongs committed by that person in virtue of their relation, though not specifically authorized.
The former head presents little or no difficulty. The Edition: current; Page: [69] latter includes considerable difficulties of principle, and is often complicated with troublesome questions of fact.
Command and ratification. It scarce needs authority to show that a man is liable for wrongful acts which have been done according to his express command or request, or which, having been done on his account and for his benefit, he has adopted as his own. "A trespasser may be not only he who does the act, but who commands or procures it to be done . . . who aids or assists in it . . . or who assents afterwards"(r). This is not the less so because the person employed to do an unlawful act may be employed as an "independent contractor," so that, supposing it lawful, the employer would not be liable for his negligence about doing it. A gas company employed a firm of contractors to break open a public street, having therefor no lawful authority or excuse; the thing contracted to be done being in itself a public nuisance, the gas company was held liable for injury caused to a foot-passenger by falling over some of the earth and stones excavated and heaped up by the contractors(s). A point of importance to be noted in this connexion is that only such acts bind a principal by subsequent ratification as were done at the time on the principal's behalf. What is done by the immediate actor on his own account cannot be effectually adopted by another; neither can an act done in the name and on behalf of Peter be ratified either for gain or for loss by John. "Ratum quis habere non potest, quod ipsius nomine non est gestum"(t).Edition: current; Page: [70]
Master and servant. The more general rule governing the other and more difficult branch of the subject was expressed by Willes J. in a judgment which may now be regarded as a classical authority. "The master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved"(u).
Reason of the master's liability. No reason for the rule, at any rate no satisfying one, is commonly given in our books. Its importance belongs altogether to the modern law, and it does not seem to be illustrated by any early authority(x). Blackstone (i. 417) is short in his statement, and has no other reason to give than the fiction of an "implied command." It is currently said, Respondeat superior; which is a dogmatic statement, not an explanation. It is also said, Qui facit per alium facit per se; but this is in terms applicable only to authorized acts, not to acts that, although done by the agent or servant "in the course of the service," are specifically unauthorized or even forbidden. Again, it is said that a master ought to be careful in choosing fit servants; but if this were the reason, a master could discharge himself by showing that the servant for whose wrong he is sued was chosen by him with due care, and was in fact generally well conducted and competent: which is certainly not the law.
A better account was given by Chief Justice Shaw of Massachusetts. "This rule," he said, "is obviously founded on the great principle of social duty, that every Edition: current; Page: [71] man in the management of his own affairs, whether by himself or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it"(y). This is, indeed, somewhat too widely expressed, for it does not in terms limit the responsibility to cases where at least negligence is proved. But no reader is likely to suppose that, as a general rule, either the servant or the master can be liable where there is no default at all. And the true principle is otherwise clearly enounced. I am answerable for the wrongs of my servant or agent, not because he is authorized by me or personally represents me, but because he is about my affairs, and I am bound to see that my affairs are conducted with due regard to the safety of others.
Some time later the rule was put by Lord Cranworth in a not dissimilar form: the master "is considered as bound to guarantee third persons against all hurt arising from the carelessness of himself or of those acting under his orders in the course of his business"(z).
The statement of Willes J. that the master "has put the agent in his place to do that class of acts" is also to be noted and remembered as a guide in many of the questions that arise. A just view seems to be taken, though artificially and obscurely expressed, in one of the earliest reported cases on this branch of the law: "It Edition: current; Page: [72] shall be intended that the servant had authority from his master, it being for his master's benefit"(a).
Questions to be considered herein. The rule, then (on whatever reason founded), being that a master is liable for the acts, neglects, and defaults of his servants in the course of the service, we have to define further—
1. Who is a servant.
2. What acts are deemed to be in the course of service.
3. How the rule is affected when the person injured is himself a servant of the same master.
Who is a servant: responsibility goes with order and control. 1. As to the first point, it is quite possible to do work for a man, in the popular sense, and even to be his agent for some purposes, without being his servant. The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs, or at any moment may direct the means also, or, as it has been put, "retains the power of controlling the work"(b); and he who does work on those terms is in law a servant for whose acts, neglects, and defaults, to the extent to be specified, the master is liable. An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified beforehand. For the acts or omissions of such a one about the performance of his undertaking his employer is not liable to strangers, no more than the buyer of goods Edition: current; Page: [73] is liable to a person who may be injured by the careless handling of them by the seller or his men in the course of delivery. If the contract, for example, is to build a wall, and the builder "has a right to say to the employer, 'I will agree to do it, but I shall do it after my own fashion; I shall begin the wall at this end, and not at the other;' there the relation of master and servant does not exist, and the employer is not liable"(c). "In ascertaining who is liable for the act of a wrong-doer, you must look to the wrong-doer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back and make the employer of that person liable"(d). He who controls the work is answerable for the workman; the remoter employer who does not control it is not answerable. This distinction is thoroughly settled in our law; the difficulties that may arise in applying it are difficulties of ascertaining the facts(e). It may be a nice question whether a man has let out the whole of a given work to an "independent contractor," or reserved so much power of control as to leave him answerable for what is done(f).Edition: current; Page: [74]
Specific assumption of control. It must be remembered that the remoter employer, if at any point he does interfere and assume specific control, renders himself answerable, not as master, but as principal. He makes himself "dominus pro tempore." Thus the hirer of a carriage, driven by a coachman who is not the hirer's servant but the letter's, is not, generally speaking, liable for harm done by the driver's negligence(g). But if he orders, or by words or conduct at the time sanctions, a specific act of rash or careless driving, he may well be liable(h). Rather slight evidence of personal interference has been allowed as sufficient in this class of cases(i).
Temporary transfer of service. One material result of this principle is that a person who is habitually the servant of A. may become, for a certain time and for the purpose of certain work, the servant of B.; and this although the hand to pay him is still A.'s. The owner of a vessel employs a stevedore to unload the cargo. The stevedore employs his own labourers; among other men, some of the ship's crew work for him by arrangement with the master, being like the others paid by the stevedore and under his orders. In the work of unloading these men are the servants of the stevedore, not of the owner(k). Edition: current; Page: [75] There is no "common employment" between the stevedore's men and the seamen on board(l).
Owners of a colliery, after partly sinking a shaft, agree with a contractor to finish the work for them, on the terms, among others, that engine power and engineers to work the engine are to be provided by the owners. The engine that has been used in excavating the shaft is handed over accordingly to the contractor; the same engineer remains in charge of it, and is still paid by the owners, but is under the orders of the contractor. During the continuance of the work on these terms the engineer is the servant not of the colliery owners but of the contractor(m).
But where iron-founders execute specific work about the structure of a new building under a contract with the architect, and without any contract with the builder, their workmen do not become servants of the builder(n).
"Power of controlling the work" explained. It is proper to add that the "power of controlling the work" which is the legal criterion of the relation of a master to a servant does not necessarily mean a present and physical ability. Shipowners are answerable for the acts of the master, though done under circumstances in which it is impossible to communicate with the owners(o). It is enough that the servant is bound to obey the master's directions if and when communicated to him. The legal power of control is to actual supervision what in the doctrine of possession the intent to possess is to physical detention. But this much is needful: therefore a compulsory Edition: current; Page: [76] pilot, who is in charge of the vessel independently of the owner's will, and, so far from being bound to obey the owner's or master's orders, supersedes the master for the time being, is not the owner's servant, and the statutory exemption of the owner from liability for such a pilot's acts is but in affirmance of the common law(p).
What is in course of employment. 2. Next we have to see what is meant by the course of service or employment. The injury in respect of which a master becomes subject to this kind of vicarious liability may be caused in the following ways:—
Let us take these heads in order.
Execution of specific orders. (a) Here the servant is the master's agent in a proper sense, and the master is liable for that which he has truly, not by the fiction of a legal maxim, commanded to be done. He is also liable for the natural consequences of his orders, even though he wished to avoid them, and Edition: current; Page: [77] desired his servant to avoid them. Thus, in Gregory v. Piper(q), a right of way was disputed between adjacent occupiers, and the one who resisted the claim ordered a labourer to lay down rubbish to obstruct the way, but so as not to touch the other's wall. The labourer executed the orders as nearly as he could, and laid the rubbish some distance from the wall, but it soon "shingled down" and ran against the wall, and in fact could not by any ordinary care have been prevented from doing so. For this the employer was held to answer as for a trespass which he had authorized. This is a matter of general principle, not of any special kind of liability. No man can authorize a thing and at the same time affect to disavow its natural consequences; no more than he can disclaim responsibility for the natural consequences of what he does himself.
Negligence in conduct of master's business. (b) Then comes the case of the servant's negligence in the performance of his duty, or rather while he is about his master's business. What constitutes negligence does not just now concern us; but it must be established that the servant is a wrong-doer, and liable to the plaintiff, before any question of the master's liability can be entertained. Assuming this to be made out, the question may occur whether the servant was in truth on his master's business at the time, or engaged on some pursuit of his own. In the latter case the master is not liable. "If the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it"(r). For example: "If a servant driving a carriage, in order to effect some purpose of his own, wantonly strike Edition: current; Page: [78] the horses of another person, . . . the master will not be liable. But if, in order to perform his master's orders, he strikes but injudiciously, and in order to extricate himself from a difficulty, that will be negligent and careless conduct, for which the master will be liable, being an act done in pursuance of the servant's employment"(s).
Departure or deviation from master's business. Whether the servant is really bent on his master's affairs or not is a question of fact, but a question which may be troublesome. Distinctions are suggested by some of the reported cases which are almost too fine to be acceptable. The principle, however, is intelligible and rational. Not every deviation of the servant from the strict execution of duty, nor every disregard of particular instructions, will be such an interruption of the course of employment as to determine or suspend the master's responsibility. But where there is not merely deviation, but a total departure from the course of the master's business, so that the servant may be said to be "on a frolic of his own"(t), the master is no longer answerable for the servant's conduct. Two modern cases of the same class and period, one on either side of the line, will illustrate this distinction.
Whatman v. Pearson. In Whatman v. Pearson(u), a carter who was employed by a contractor, having the allowance of an hour's time for dinner in his day's work, but also having orders not to leave his horse and cart, or the place where he was employed, happened to live hard by. Contrary to his instructions, he went home to dinner, and left the horse and cart unattended at his door; the horse ran away and Edition: current; Page: [79] did damage to the plaintiff's railings. A jury was held warranted in finding that the carman was throughout in the course of his employment as the contractor's servant "acting within the general scope of his authority to conduct the horse and cart during the day"(x).
Storey v. Ashton. In Storey v. Ashton(y), a carman was returning to his employer's office with returned empties. A clerk of the same employer's who was with him induced him, when he was near home, to turn off in another direction to call at a house and pick up something for the clerk. While the carman was driving in this direction he ran over the plaintiff. The Court held that if the carman "had been merely going a roundabout way home, the master would have been liable; but he had started on an entirely new journey on his own or his fellow-servant's account, and could not in any way be said to be carrying out his master's employment"(z). More lately it has been held that if the servant begins using his master's property for purposes of his own, the fact that by way of afterthought he does something for his master's purposes also is not necessarily such a "re-entering upon his ordinary duties" as to make the master answerable for him. A journey undertaken on the servant's own account "cannot by the mere fact of the man making a pretence of duty by stopping on his way be converted into a journey made in the course of his employment"(a).Edition: current; Page: [80]
Williams v. Jones. The following is a curious example. A carpenter was employed by A. with B.'s permission to work for him in a shed belonging to B. This carpenter set fire to the shed in lighting his pipe with a shaving. His act, though negligent, having nothing to do with the purpose of his employment, A. was not liable to B.(b). It does not seem difficult to pronounce that lighting a pipe is not in the course of a carpenter's employment; but the case was one of difficulty as being complicated by the argument that A., having obtained a gratuitous loan of the shed for his own purposes, was answerable, without regard to the relation of master and servant, for the conduct of persons using it. This failed for want of anything to show that A. had acquired the exclusive use or control of the shed. Apart from this, the facts come very near to the case which has been suggested, but not dealt with by the Courts in any reported decision, of a miner opening his safety-lamp to get a light for his pipe, and thereby causing an explosion; where "it seems clear that the employer would not be held liable"(c).
Excess or mistake in execution of authority. (c) Another kind of wrong which may be done by a servant in his master's business, and so as to make the master liable, is the excessive or erroneous execution of a lawful authority. To establish a right of action against the master in such a case it must be shown that (α) the servant intended to do on behalf of his master something of a kind which he was in fact authorized to do; (β) the act, if done in a proper manner, or under the circumstances erroneously supposed by the servant to exist, would have been lawful.Edition: current; Page: [81]
The master is chargeable only for acts of an authorized class which in the particular instance are wrongful by reason of excess or mistake on the servant's part. For acts which he has neither authorized in kind nor sanctioned in particular he is not chargeable.
Interference with passengers by guards, &c. Most of the cases on this head have arisen out of acts of railway servants on behalf of the companies. A porter whose duty is, among other things, to see that passengers do not get into wrong trains or carriages (but not to remove them from a wrong carriage), asks a passenger who has just taken his seat where he is going. The passenger answers, "To Macclesfield." The porter, thinking the passenger is in the wrong train, pulls him out; but the train was in fact going to Macclesfield, and the passenger was right. On these facts a jury may well find that the porter was acting within his general authority so as to make the company liable(d). Here are both error and excess in the servant's action: error in supposing facts to exist which make it proper to use his authority (namely, that the passenger has got into the wrong train); excess in the manner of executing his authority, even had the facts been as he supposed. But they do not exclude the master's liability.
"A person who puts another in his place to do a class of acts in his absence necessarily leaves him to determine, according to the circumstances that arise, when an act of that class is to be done, and trusts him for the manner in which it is done; and consequently he is held responsible for the wrong of the person so intrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been Edition: current; Page: [82] done; provided that what was done was done, not from any caprice of the servant, but in the course of the employment"(e).
Seymour v. Greenwood(f) is another illustrative case of this class. The guard of an omnibus removed a passenger whom he thought it proper to remove as being drunken and offensive to the other passengers, and in so doing used excessive violence. Even if he were altogether mistaken as to the conduct and condition of the passenger thus removed, the owner of the omnibus was answerable. "The master, by giving the guard authority to remove offensive passengers, necessarily gave him authority to determine whether any passenger had misconducted himself."
Arrest of supposed offenders. Another kind of case under this head is where a servant takes on himself to arrest a supposed offender on his employer's behalf. Here it must be shown, both that the arrest would have been justified if the offence had really been committed by the party arrested, and that to make such an arrest was within the employment of the servant who made it. As to the latter point, however, "where there is a necessity to have a person on the spot to act on an emergency, and to determine whether certain things shall or shall not be done, the fact that there is a person on the spot who is acting as if he had express authority is prima facie evidence that he had authority"(g). Railway companies have accordingly been held liable for wrongful arrests made by their inspectors or other officers as for attempted frauds on the company punishable under statutes or authorized by-laws, and the like(h).Edition: current; Page: [83]
Act wholly outside authority, master not liable. But the master is not answerable if the servant takes on himself, though in good faith and meaning to further the master's interest, that which the master has no right to do even if the facts were as the servant thinks them to be: as where a station-master arrested a passenger for refusing to pay for the carriage of a horse, a thing outside the company's powers(i). The same rule holds if the particular servant's act is plainly beyond his authority, as where the officer in charge of a railway station arrests a man on suspicion of stealing the company's goods, an act which is not part of the company's general business, nor for their apparent benefit(k). In a case not clear on the face of it, as where a bank manager commences a prosecution, which turns out to be groundless, for a supposed theft of the bank's property—a matter not within the ordinary routine of banking business, but which might in the particular case be within the manager's authority—the extent of the servant's authority is a question of fact(l). Much must depend on the nature of the matter in which the authority is given. Thus an agent entrusted with general and ample powers for the management of a farm has been held to be clearly outside the scope of his authority in entering on the adjacent owner's land on the other side of a boundary ditch in order to cut underwood which was choking the ditch and hindering the drainage from the farm. If he had done something on his employer's own land which was an actionable injury to adjacent land, the employer might have been liable. But it was thought unwarrantable to say "that an agent entrusted with authority to be Edition: current; Page: [84] exercised over a particular piece of land has authority to commit a trespass on other land"(m). More generally, an authority cannot be implied for acts not necessary to protect the employer's property, such as arresting a customer for a supposed attempt to pass bad money(n).
Wilful trespasses, &c. for master's purposes. (d) Lastly, a master may be liable even for wilful and deliberate wrongs committed by the servant, provided they be done on the master's account and for his purposes: and this, no less than in other cases, although the servant's conduct is of a kind actually forbidden by the master. Sometimes it has been said that a master is not liable for the "wilful and malicious" wrong of his servant. If "malicious" means "committed exclusively for the servant's private ends," or "malice" means "private spite"(o), this is a correct statement; otherwise it is contrary to modern authority. The question is not what was the nature of the act in itself, but whether the servant intended to act in the master's interest.
This was decided by the Exchequer Chamber in Limpus v. London General Omnibus Company(p), where the defendant company's driver had obstructed the plaintiff's omnibus by pulling across the road in front of it, and caused it to upset. He had printed instructions not to race with or obstruct other omnibuses. Martin B. directed the jury, in effect, that if the driver acted in the way of his employment and in the supposed interest of his employers as against a rival in their business, the employers Edition: current; Page: [85] were answerable for his conduct, but they were not answerable if he acted only for some purpose of his own: and this was approved by the Court(q) above. The driver "was employed not only to drive the omnibus, but also to get as much money as he could for his master, and to do it in rivalry with other omnibuses on the road. The act of driving as he did is not inconsistent with his employment, when explained by his desire to get before the other omnibus." As to the company's instructions, "the law is not so futile as to allow a master, by giving secret instructions to his servant, to discharge himself from liability"(r).
Fraud of agent or servant. That an employer is liable for frauds of his servant committed without authority, but in the course of the service and in apparent furtherance of the employer's purposes, was established with more difficulty; for it seemed harsh to impute deceit to a man personally innocent of it, or (as in the decisive cases) to a corporation, which, not being a natural person, is incapable of personal wrong-doing(s). But when it was fully realized that in all these cases the master's liability is imposed by the policy of the law without regard to personal default on his part, so that his express command or privity need not be shown, it was a necessary consequence that fraud should be on the same footing as any other wrong(t). So the Edition: current; Page: [86] matter is handled in our leading authority, the judgment of the Exchequer Chamber delivered by Willes J. in Barwick v. English Joint Stock Bank.
"With respect to the question, whether a principal is answerable for the act of his agent in the course of his master's business, and for his master's benefit, no sensible distinction can be drawn between the case of fraud and the case of any other wrong"(u).
This has been more than once fully approved in the Privy Council(x), and may now be taken, notwithstanding certain appearances of conflict(y), to have the approval of the House of Lords also(z). What has been said to the contrary was either extra-judicial, as going beyond the ratio decidendi of the House, or is to be accepted as limited to the particular case where a member of an incorporated company, not having ceased to be a member, seeks to charge the company with the fraud of its directors or other agents in inducing him to join it(a).
But conversely a false and fraudulent statement of a Edition: current; Page: [87] servant made for ends of his own, though in answer to a question of a kind he was authorized to answer on his master's behalf, will not render the master liable in an action for deceit(b).
The leading case of Mersey Docks Trustees v. Gibbs(c) may also be referred to in this connexion, as illustrating the general principles according to which liabilities are imposed on corporations and public bodies.
Liability of firm for fraud of a partner. There is abundant authority in partnership law to show that a firm is answerable for fraudulent misappropriation of funds, and the like, committed by one of the partners in the course of the firm's business and within the scope of his usual authority, though no benefit be derived therefrom by the other partners. But, agreeably to the principles above stated, the firm is not liable if the transaction undertaken by the defaulting partner is outside the course of partnership business. Where, for example, one of a firm of solicitors receives money to be placed in a specified investment, the firm must answer for his application of it, but not, as a rule, if he receives it with general instructions to invest it for the client at his own discretion(d). Again, the firm is not liable if the facts show that exclusive credit was given to the actual wrong-doer(e). In all these cases the wrong is evidently wilful. In all or most of them, however, it is at the same time a breach of contract or trust. And it seems to be on this ground that the firm is held liable even when the defaulting partner, though Edition: current; Page: [88] professing to act on behalf of the firm, misapplies funds or securities merely for his own separate gain. The reasons given are not always free from admixture of the Protean doctrine of "making representations good," which is now, I venture to think, exploded(f).
Injuries to servants by fault of fellow-servants. 3. There remains to be considered the modification of a master's liability for the wrongful act, neglect, or default of his servant when the person injured is himself in and about the same master's service. It is a topic far from clear in principle; the Employers' Liability Act, 1880, has obscurely indicated a sort of counter principle, and introduced a number of minute and empirical exceptions, or rather limitations of the exceptional rule in question. That rule,Common law rule of master's immunity. as it stood before the Act of 1880, is that a master is not liable to his servant for injury received from any ordinary risk of or incident to the service, including acts or defaults of any other person employed in the same service. Our law can show no more curious instance of a rapid modern development. The first evidence of any such rule is in Priestley v. Fowler(g), decided in 1837, which proceeds on the theory (if on any definite theory) that the master "cannot be bound to take more care of the servant than he may reasonably be expected to do of himself;" that a servant has better opportunities than his master of watching and controlling the conduct of his fellow-servants; and that a contrary doctrine would lead to intolerable inconvenience, and encourage servants to be negligent. According to this there would be a sort of presumption that the servant suffered to some extent by Edition: current; Page: [89] want of diligence on his own part. But it is needless to pursue this reasoning; for the like result was a few years afterwards arrived at by Chief Justice Shaw of Massachusetts by another way, and in a judgment which is the fountain-head of all the later decisions(h), and has now been judicially recognized in England as "the most complete exposition of what constitutes common employment"(i). The accepted doctrine is to this effect.Reason given in the later cases. Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as a stranger. He has of his free will entered into the business and made it his own. He cannot say to the master, You shall so conduct your business as not to injure me by want of due care and caution therein. For he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow-servant, or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment. This is, I believe, a fair summary of the reasoning which has prevailed in the authorities. With its soundness we are not here concerned. It was not only adopted by the House of Lords for England, but forced by them upon the reluctant Courts of Scotland to make the jurisprudence of the two countries uniform(k). No such doctrine appears to exist in the law of any other country Edition: current; Page: [90]in Europe. The following is a clear judicial statement of it in its settled form: "A servant, when he engages to serve a master, undertakes, as between himself and his master, to run all the ordinary risks of the service, including the risk of negligence upon the part of a fellow-servant when he is acting in the discharge of his duty as servant of him who is the common master of both"(l).
The servants need not be about the same kind of work: The phrase "common employment" is frequent in this class of cases. But it is misleading in that it suggests a limitation of the rule to circumstances where the injured servant had in fact some opportunity of observing and guarding against the conduct of the negligent one; a limitation rejected by the Massachusetts Court in Farwell's case, where an engine-driver was injured by the negligence of a switchman (pointsman as we say on English railways) in the same company's service, and afterwards constantly rejected by the English Courts.
"When the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely difficult to distinguish what constitutes one department and what a distinct department of duty. It would vary with the circumstances of every case. If it were made to depend upon the nearness or distance of the persons from each other, the question would immediately arise, how near or how distant must they be to be in the same or different departments. In a blacksmith's shop, persons working in the same building, at different fires, may be quite independent of each other, though only a few feet distant. In a Edition: current; Page: [91] ropewalk several may be at work on the same piece of cordage, at the same time, at many hundred feet distant from each other, and beyond the reach of sight or voice, and yet acting together.
"Besides, it appears to us that the argument rests upon an assumed principle of responsibility which does not exist. The master, in the case supposed, is not exempt from liability because the servant has better means of providing for his safety when he is employed in immediate connexion with those from whose negligence he might suffer, but because the implied contract of the master does not extend to indemnify the servant against the negligence of any one but himself; and he is not liable in tort, as for the negligence of his servant, because the person suffering does not stand towards him in the relation of a stranger, but is one whose rights are regulated by contract, express or implied"(m).
provided there is a general common object. So it has been said that "we must not over-refine, but look at the common object, and not at the common immediate object"(n). All persons engaged under the same employer for the purposes of the same business, however different in detail those purposes may be, are fellow-servants in a common employment within the meaning of this rule: for example, a carpenter doing work on the roof of an engine-shed and porters moving an engine on a Edition: current; Page: [92] turntable(o). "Where there is one common general object, in attaining which a servant is exposed to risk, he is not entitled to sue the master if he is injured by the negligence of another servant whilst engaged in furthering the same object"(p).
Relative rank of the servants immaterial. It makes no difference if the servant by whose negligence another is injured is a foreman, manager, or other superior in the same employment, whose orders the other was by the terms of his service bound to obey. The foreman or manager is only a servant having greater authority: foremen and workmen, of whatever rank, and however authority and duty may be distributed among them, are "all links in the same chain"(q). So the captain employed by a shipowner is a fellow-servant of the crew, and a sailor injured by the captain's negligence has no cause of action against the owner(r). The master is bound, as between himself and his servants, to exercise due care in selecting proper and competent persons for the work (whether as fellow-workmen in the ordinary sense, or as superintendents or foremen), and to furnish suitable means and resources to accomplish the work(s), and he is not answerable further(t).Edition: current; Page: [93]
Servants of sub-contractor. Attempts have been made to hold that the servants of sub-contractors for portions of a general undertaking were for this purpose fellow-servants with the servants directly employed by the principal contractors, even without evidence that the sub-contractors' work was under the direction or control of the chief contractors. This artificial and unjust extension of a highly artificial rule has fortunately been stopped by the House of Lords(u).
Volunteer assistant is on same footing as servant. Moreover, a stranger who gives his help without reward to a man's servants engaged in any work is held to put himself, as regards the master's liability towards him, in the same position as if he were a servant. Having of his free will (though not under a contract of service) exposed himself to the ordinary risks of the work and made himself a partaker in them, he is not entitled to be indemnified against them by the master any more than if he were in his regular employment(x). This is really a branch of Edition: current; Page: [94] the doctrine "volenti non fit iniuria," discussed below under the title of General Exceptions.
Exception where the master interferes in person. On the other hand, a master who takes an active part in his own work is not only himself liable to a servant injured by his negligence, but, if he has partners in the business, makes them liable also. For he is the agent of the firm, but not a servant(y): the partners are generally answerable for his conduct, yet cannot say he was a fellow-servant of the injured man.
Employers' Liability Act, 1880. Such were the results arrived at by a number of modern authorities, which it seems useless to cite in more detail(z): the rule, though not abrogated, being greatly limited in application by the statute of 1880. This Act (43 & 44 Vict. c. 42) is on the face of it an experimental and empirical compromise between conflicting interests. It was temporary, being enacted only for seven years and the next session of Parliament, and since continued from time to time(a); it is confined in its operation to certain specified causes of injury; and only certain kinds of servants are entitled to the benefit of it, and then upon restrictive conditions as to notice of action, mode of trial, and amount of compensation, which are unknown to the common law, and with a special period of limitation. The effect is that a "workman" within the meaning of the Act is put as against his employer in approximately (not altogether, I think) the same position as an outsider as regards the safe and fit condition of the material instruments, fixed or moveable, of the master's business. He is also entitled to compensation for harm incurred through the negligence of Edition: current; Page: [95] another servant exercising superintendence, or by the effect of specific orders or rules issued by the master or some one representing him; and there is a special wider provision for the benefit of railway servants, which virtually abolishes the master's immunity as to railway accidents in the ordinary sense of that term. So far as the Act has any principle, it is that of holding the employer answerable for the conduct of those who are in delegated authority under him. It is noticeable that almost all the litigation upon the Act has been caused either by its minute provisions as to notice of action, or by desperate attempts to evade those parts of its language which are plain enough to common sense. The text of the Act, and references to the decisions upon it, will be found in the Appendix (Note B).
Resulting complication of the law. On the whole we have, in a matter of general public importance and affecting large classes of persons who are neither learned in the law nor well able to procure learned advice, the following singularly intricate and clumsy state of things.
First, there is the general rule of a master's liability for his servants (itself in some sense an exceptional rule to begin with).
Secondly, the immunity of the master where the person injured is also his servant.
Thirdly, in the words of the marginal notes of the Employers' Liability Act, "amendment of law" by a series of elaborate exceptions to that immunity.
Fourthly, "exceptions to amendment of law" by provisoes which are mostly but not wholly re-statements of the common law.
Fifthly, minute and vexatious regulations as to procedure in the cases within the first set of exceptions.Edition: current; Page: [96]
It is incredible that such a state of things should nowadays be permanently accepted either in substance or in form. This, however, is not the place to discuss the principles of the controversy, which I have attempted to do elsewhere(b). In the United States the doctrine laid down by the Supreme Court of Massachusetts in Farwell's case has been very generally followed(c). Except in Massachusetts, however, an employer does not so easily avoid responsibility by delegating his authority, as to choice of servants or otherwise, to an intermediate superintendent(d). There has been a good deal of State legislation, but mostly for the protection of railway servants only. Massachusetts has a more recent and more comprehensive statute based on the English Act of 1880(e). A collection of more or less detailed reports "on the laws regulating the liability of employers in foreign countries" has been published by the Foreign Office(f).
Conditions excluding liability for act prima facie wrongful. We have considered the general principles of liability for civil wrongs. It now becomes needful to consider the general exceptions to which these principles are subject, or in other words the rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. It is an actionable wrong, generally speaking, to lay hands on a man in the way of force or restraint. But it is the right of every man to defend himself against unlawful force, and it is the duty of officers of justice to apply force and restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if he does he must abide its Edition: current; Page: [98] ordinary chances. Here the harm done, if not justified (for, though in a manner unavoidable, it was not in a legal sense necessary), is nevertheless excused(a). Again, defamation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again, "sic utere tuo ut alienum non laedas" is said to be a precept of law; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them.
General and particular exceptions. Some of the principles by which liability is excluded are applicable indifferently to all or most kinds of injury, while others are confined to some one species. The rule as to "privileged communications" belongs only to the law of libel and slander, and must be dealt with under that particular branch of the subject. So the rule as to "contributory negligence" qualifies liability for negligence, and can be understood only in connexion with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conveniently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of General Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called "acts of state," nor of judicial acts. Executive Edition: current; Page: [99] acts of lawful authority form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also, there are various cases in which unqualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right: inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions amounting to acceptance of the risk, and harm inflicted in self-defence or (in some cases) otherwise by necessity. These grounds of exemption from civil liability for wrongs have to be severally examined and defined. And first of "Acts of State."
Acts of State. It is by no means easy to say what an act of state is, though the term is not of unfrequent occurrence. On the whole, it appears to signify—(1) An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty; (2) more particularly (in the words of Sir James Stephen(b)), "an act injurious to the person or to the property of some person who is not at the time of that act a subject(c) of her Edition: current; Page: [100] Majesty; which act is done by any representative of her Majesty's authority, civil or military, and is either previously sanctioned, or subsequently ratified by her Majesty" (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers).
General ground of exemption. Our courts of justice profess themselves not competent to discuss acts of these kinds for reasons thus expressed by the Judicial Committee of the Privy Council:—"The transactions of independent States between each other" (and with subjects of other States), "are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make"(d).
A series of decisions of the Indian Supreme Courts and the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes(e). In these cases the line between public and private property, between acts of regular administration and acts of war or of annexation, is not always easy to draw. Most of them turn on acts of political annexation. Persons who by such an act become British subjects do not thereby become entitled to complain in municipal courts deriving their authority from the British Government of the act of annexation itself or anything incident to it. In such a case the only remedy is by petition of right to the Crown. And the effect is the same if the act is originally an excess of authority, but is afterwards ratified by the Crown.Edition: current; Page: [101]
"The leading case on this subject is Buron v. Denman(f). This was an action against Captain Denman, a captain in the navy, for burning certain barracoons on the West Coast of Africa, and releasing the slaves contained in them. His conduct in so doing was approved by a letter written by Mr. Stephen, then Under Secretary of State for the Colonies, by the direction of Lord John Russell, then Secretary of State. It was held that the owner of the slaves [a Spanish subject] could recover no damages for his loss, as the effect of the ratification of Captain Denman's act was to convert what he had done into an act of state, for which no action would lie."
So far Sir James Stephen, in his History of the Criminal Law(g). It is only necessary to add, as he did on the next page, that "as between the sovereign and his subjects there can be no such thing as an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not": as, for example, when the Court of King's Bench decided that a Secretary of State had no power to issue general warrants to search for and seize papers and the like(h).
Local actions against viceroy or governor. Another question which has been raised in the colonies and Ireland, but which by its nature cannot come before an English court for direct decision, is how far an action is maintainable against an officer in the nature of a viceroy Edition: current; Page: [102] during his term of office, and in the local courts of the territory in which he represents the Crown. It has been held by the Judicial Committee that the Lieutenant-Governor of a colony is not exempt from suit in the courts of that colony for a debt or other merely private cause of action(i); and by the Irish courts, on the other hand, that the Lord-Lieutenant is exempt from being sued in Ireland for an act done in his official or "politic" capacity(j).
Power to exclude aliens. An alien not already admitted to the enjoyment of civil rights in England (or any British possession) seems to have no remedy in our law if prevented by the local executive authority from entering British territory(k). It seems doubtful whether admission to temporary allegiance in one part of the British Empire would confer any right to be admitted to another part.
Acts of foreign powers. There is another quite distinct point of jurisdiction in connexion with which the term "act of state" is used. A sovereign prince or other person representing an independent power is not liable to be sued in the courts of this country for acts done in a sovereign capacity; and this even if in some other capacity he is a British subject, as was the case with the King of Hanover, who remained an English peer after the personal union between the Edition: current; Page: [103] Crowns of England and Hanover was dissolved(l). This rule is included in a wider one which not only extends beyond the subject of this work, but belongs to international as much as to municipal law. It has been thus expressed by the Court of Appeal: "As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador(m), though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction"(n).
Summary. If we may generalize from the doctrine of our own courts, the result seems to be that an act done by the authority, previous or subsequent, of the government of a sovereign state in the exercise of de facto sovereignty(o), is not examinable at all in the courts of justice of any other state. So far forth as it affects persons not subject to the government in question, it is not examinable in the Edition: current; Page: [104] ordinary courts of that state itself. If and so far as it affects a subject of the same state, it may be, and in England it is, examinable by the courts in their ordinary jurisdiction. In most Continental countries, however, if not in all, the remedy for such acts must be sought before a special tribunal (in France the Conseil d'Etat: the preliminary question whether the ordinary court or the Conseil d'Etat has jurisdiction is decided by the Tribunal des Conflits, a peculiar and composite court)(p).
Judicial acts. Next as to judicial acts. The rule is that "no action will lie against a judge for any acts done or words spoken in his judicial capacity in a court of justice"(q). And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which applies equally to all judicial proceedings. But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction); and the act complained of must be of a kind which he had power to do as judge in that matter.
Thus a revising barrister has power by statute(r) "to order any person to be removed from his court who shall interrupt the business of the court, or refuse to obey his Edition: current; Page: [105] lawful orders in respect of the same": but it is an actionable trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister's opinion he improperly suppressed facts within his knowledge at the holding of a former court(s). The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts which show that he has no jurisdiction(t); though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it(u).
A judge is not liable in trespass for want of jurisdiction, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact(x). And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that conclusion(y).
Allegations that the act complained of was done "maliciously and corruptly," that words were spoken "falsely and maliciously," or the like, will not serve to make an action of this kind maintainable against a judge either of a superior(z) or of an inferior(a) court.Edition: current; Page: [106]
Liability by statute in special cases. There are two cases in which by statute an action does or did lie against a judge for misconduct in his office, namely, if he refuses to grant a writ of habeas corpus in vacation time(b), and if he refused to seal a bill of exceptions(c).
Judicial acts of persons not judges. The rule of immunity for judicial acts is applied not only to judges of the ordinary civil tribunals, but to members of naval and military courts-martial or courts of inquiry constituted in accordance with military law and usage(d). It is also applied to a limited extent to arbitrators, and to any person who is in a position like an arbitrator's, as having been chosen by the agreement of parties to decide a matter that is or may be in difference between them. Such a person, if he acts honestly, is not liable for errors in judgment(e). He would be liable for a corrupt or partisan exercise of his office; but if he really does use a judicial discretion, the rightness or competence of his judgment cannot be brought into question for the purpose of making him personally liable.
The doctrine of our courts on this subject appears to be fully and uniformly accepted in the United States(f).
Executive acts. As to executive acts of public officers, no legal wrong can be done by the regular enforcement of any sentence or process of law, nor by the necessary use of force for preserving the peace. It will be observed that private persons are in many cases entitled, and in some bound, to give aid and assistance, or to act by themselves, in executing the law; and in so doing they are similarly protected(g). Were not this the rule, it is evident that the law could not be enforced at all. But a public officer may err by going beyond his authority in various ways. When this happens (and such cases are not uncommon), there are distinctions to be observed. The principle which runs through both common law and legislation in the matter is that an officer is not protected from the ordinary consequence of unwarranted acts which it rested with himself to avoid, such as using needless violence to secure a prisoner; but he is protected if he has only acted in a manner in itself reasonable, and in execution of an apparently regular warrant or order which on the face of it he was bound to obey(h). This applies only to irregularity in the process of a court having jurisdiction over the alleged cause. Where an order is issued by a court which has no jurisdiction at all in the subject-matter, so that the proceedings are, as it is said, "coram non judice," the exemption ceases(i). A constable or officer acting under a justice's warrant is, however, specially protected by statute, notwithstanding any defect of jurisdiction, if he produces Edition: current; Page: [108] the warrant on demand(k). The provisions of many particular statutes which gave a qualified protection to persons acting under the statute have been superseded by the Public Authorities' Protection Act, 1893, which substitutes for their various requirements the one rule that proceedings against any person for any act done in execution of a statutory or other public duty shall be commenced within six months(l).
As to a mere mistake of fact, such as arresting the body or taking the goods of the wrong person, an officer of the law is not excused in such a case. He must lay hands on the right person or property at his peril, the only exception being on the principle of estoppel, where he is misled by the party's own act(m).
Acts of naval and military officers. Acts done by naval and military officers in the execution or intended execution of their duty, for the enforcement of the rules of the service and preservation of discipline, fall to some extent under this head. The justification of a superior officer as regards a subordinate partly depends on the consent implied (or indeed expressed) in the act of a man's joining the service that he will abide by its regulations and usages; partly on the sanction expressly given to military law by statutes. There is very great weight of opinion, but no absolute decision, that an action does not lie in a civil court for bringing an alleged offender against military law (being a person subject to that law) before a Edition: current; Page: [109] court-martial without probable cause(n). How far the orders of a superior officer justify a subordinate who obeys them as against third persons has never been fully settled. But the better opinion appears to be that the subordinate is in the like position with an officer executing an apparently regular civil process, namely, that he is protected if he acts under orders given by a person whom he is generally bound by the rules of the service to obey, and of a kind which that person is generally authorized to give, and if the particular order is not necessarily or manifestly unlawful(o).
Of other public authorities. The same principles apply to the exemption of a person acting under the orders of any public body competent in the matter in hand. An action does not lie against the Serjeant-at-arms of the House of Commons for excluding a member from the House in obedience to a resolution of the House itself; this being a matter of internal discipline in which the House is supreme(p).
Indian Act, XVIII. of 1850. The principles of English law relating to the protection of judicial officers and persons acting under their orders have in British India been declared by express enactment (Act XVIII. of 1850).
Acts of quasi-judicial discretion. Divers persons and bodies are called upon, in the management of public institutions or government of voluntary associations, to exercise a sort of conventional jurisdiction analogous to that of inferior courts of justice. These quasi-judicial functions are in many cases created or confirmed by Parliament. Such are the powers of the universities over their officers and graduates, and of colleges in the universities over their fellows and scholars, and of the General Council of Medical Education over registered medical practitioners(q). Often the authority of the quasi-judicial body depends on an instrument of foundation, the provisions of which are binding on all persons who accept benefits under it. Such are the cases of endowed schools and religious congregations. And the same principle appears in the constitution of modern incorporated companies, and even of private partnerships. Further, a quasi-judicial authority may exist by the mere convention of a number of persons who have associated themselves for any lawful purpose, and have entrusted powers of management and discipline to select members. The committees of most clubs have by the rules of the club some such authority, or at any rate an initiative in presenting matters of discipline before the whole body. The Inns of Court exhibit a curious and unique example of great power and authority exercised by voluntary unincorporated societies in a legally anomalous manner. Their powers are for some purposes quasi-judicial, and yet they are not subject to any ordinary jurisdiction(r).Edition: current; Page: [111]
Rules of natural justice and special rules, if any, must be observed. The general rule as to quasi-judicial powers of this class is that persons exercising them are protected from civil liability if they observe the rules of natural justice, and also the particular statutory or conventional rules, if any, which may prescribe their course of action. The rules of natural justice appear to mean, for this purpose, that a man is not to be removed from office or membership, or otherwise dealt with to his disadvantage, without having fair and sufficient notice of what is alleged against him, and an opportunity of making his defence; and that the decision, whatever it is, must be arrived at in good faith with a view to the common interest of the society or institution concerned. If these conditions be satisfied, a court of justice will not interfere, not even if it thinks the decision was in fact wrong(s). If not, the act complained of will be declared void, and the person affected by it maintained in his rights until the matter has been properly and regularly dealt with(t). These principles apply to the expulsion of a partner from a private firm Edition: current; Page: [112] where a power of expulsion is conferred by the partnership contract(u).
Absolute discretionary powers. It may be, however, that by the authority of Parliament (or, it would seem, by the previous agreement of the party to be affected) a governing or administrative body, or the majority of an association, has power to remove a man from office or the like without anything in the nature of judicial proceedings, and without showing any cause at all. Whether a particular authority is judicial or absolute must be determined by the terms of the particular instrument creating it(v).
Questions whether duty judicial or ministerial: Ashby v. White, &c. On the other hand there may be question whether the duties of a particular office be quasi-judicial, or merely ministerial, or judicial for some purposes and ministerial for others. It seems that at common law the returning or presiding officer at a parliamentary or other election has a judicial discretion, and does not commit a wrong if by an honest error of judgment he refuses to receive a vote(x): but now in most cases it will be found that such officers are under absolute statutory duties(y), which they must perform at their peril.
Authority of parents and persons in loco parentis. Thus much of private quasi-judicial authority. There are also several kinds of authority in the way of summary force or restraint which the necessities of society require to be exercised by private persons. And such persons are protected in exercise thereof, if they act with good faith and in a reasonable and moderate manner. Parental authority (whether in the hands of a father or guardian, or of a person to whom it is delegated, such as a schoolmaster) is the most obvious and universal instance(z). It is needless to say more of this here, except that modern civilization has considerably diminished the latitude of what judges or juries are likely to think reasonable and moderate correction(a).
Of custodians of lunatics, &c. Persons having the lawful custody of a lunatic, and those acting by their direction, are justified in using such reasonable and moderate restraint as is necessary to prevent the lunatic from doing mischief to himself or others, or required, according to competent opinion, as part of his treatment. This may be regarded as a quasi-paternal power; but I conceive the person entrusted with it is bound to use more diligence in informing himself what treatment is proper than a parent is bound (I mean, can be held bound in a court of law) to use in studying the best method of education. The standard must be more Edition: current; Page: [114] strict as medical science improves. A century ago lunatics were beaten, confined in dark rooms, and the like. Such treatment could not be justified now, though then it would have been unjust to hold the keeper criminally or civilly liable for not having more than the current wisdom of experts. In the case of a drunken man, or one deprived of self-control by a fit or other accident, the use of moderate restraint, as well for his own benefit as to prevent him from doing mischief to others, may in the same way be justified.
Of the master of a ship. The master of a merchant ship has by reason of necessity the right of using force to preserve order and discipline for the safety of the vessel and the persons and property on board. Thus, if he has reasonable cause to believe that any sailor or passenger is about to raise a mutiny, he may arrest and confine him. The master may even be justified in a case of extreme danger in inflicting punishment without any form of inquiry. But "in all cases which will admit of the delay proper for inquiry, due inquiry should precede the act of punishment; and . . . . the party charged should have the benefit of that rule of universal justice, of being heard in his own defence"(b). In fact, when the immediate emergency of providing for the safety and discipline of the ship is past, the master's authority becomes a quasi-judicial one. There are conceivable circumstances in which the leader of a party on land, such as an Alpine expedition, might be justified on the same principle in exercising compulsion to assure the common safety Edition: current; Page: [115] of the party. But such a case, though not impossible, is not likely to occur for decision.
Damage incidentally resulting from act not unlawful. Thus far we have dealt with cases where some special relation of the parties justifies or excuses the intentional doing of things which otherwise would be actionable wrongs. We now come to another and in some respects a more interesting and difficult category. Damage suffered in consequence of an act done by another person, not for that intent, but for some other purpose of his own, and not in itself unlawful, may for various reasons be no ground of action. The general precept of law is commonly stated to be "Sic utere tuo ut alienum non laedas." If this were literally and universally applicable, a man would act at his peril whenever and wherever he acted otherwise than as the servant of the law. Such a state of things would be intolerable. It would be impossible, for example, to build or repair a wall, unless in the middle of an uninhabited plain. But the precept is understood to be subject to large exceptions. Its real use is to warn us against the abuse of the more popular adage that "a man has a right to do as he likes with his own"(c), which errs much more dangerously on the other side.
There are limits to what a man may do with his own; and if he does that which may be harmful to his neighbour, it is his business to keep within those limits. Neither the Latin nor the vernacular maxim will help us much, however, to know where the line is drawn. The problems raised by the apparent opposition of the two principles Edition: current; Page: [116] must be dealt with each on its own footing. We say apparent; for the law has not two objects, but one, that is, to secure men in the enjoyment of their rights and of their due freedom of action. In its most general form, therefore, the question is, where does the sphere of a man's proper action end, and aggression on the sphere of his neighbour's action begin?
Damage from execution of authorized works. The solution is least difficult for the lawyer when the question has been decided in principle by a sovereign legislature. Parliament has constantly thought fit to direct or authorize the doing of things which but for that direction and authority might be actionable wrongs. Now a man cannot be held a wrong-doer in a court of law for acting in conformity with the direction or allowance of the supreme legal power in the State. In other words "no action will lie for doing that which the Legislature has authorized, if it be done without negligence, although it does occasion damage to any one." The meaning of the qualification will appear immediately. Subject thereto, "the remedy of the party who suffers the loss is confined to recovering such compensation" (if any) "as the Legislature has thought fit to give him"(d). Instead of the ordinary question whether a wrong has been done, there can only be a question whether the special power which has been exercised is coupled, by the same authority that created it, with a special duty to make compensation for incidental damage. The authorities on this subject are voluminous and discursive, and exhibit notable differences of opinion. Those differences, however, turn chiefly on the application of admitted principles to particular facts, Edition: current; Page: [117] and on the construction of particular enactments. Thus it has been disputed whether the compensation given by statute to persons who are "injuriously affected" by authorized railway works, and by the same statutes deprived of their common-law rights of action, was or was not co-extensive with the rights of action expressly or by implication taken away; and it has been decided, though not without doubts and weighty dissent, that in some cases a party who has suffered material loss is left without either ordinary or special remedy(e).
No action for unavoidable damage. Apart from the question of statutory compensation, it is settled that no action can be maintained for loss or inconvenience which is the necessary consequence of an authorized thing being done in an authorized manner. A person dwelling near a railway constructed under the authority of Parliament for the purpose of being worked by locomotive engines cannot complain of the noise and vibration caused by trains passing and repassing in the ordinary course of traffic, however unpleasant he may find it(f); nor of damage caused by the escape of sparks from the engines, if the company has used due caution to prevent such escape so far as practicable(g). So, where a corporation is Edition: current; Page: [118] empowered to make a river navigable, it does not thereby become bound to keep the bed of the river clear beyond what is required for navigation, though an incidental result of the navigation works may be the growth of weeds and accumulation of silt to the prejudice of riparian owners(h).
Care and caution required in exercise of discretionary powers. But in order to secure this immunity the powers conferred by the Legislature must be exercised without negligence, or, as it is perhaps better expressed, with judgment and caution(i). For damage which could not have been avoided by any reasonably practicable care on the part of those who are authorized to exercise the power, there is no right of action. But they must not do needless harm; and if they do, it is a wrong against which the ordinary remedies are available. If an authorized railway comes near my house, and disturbs me by the noise and vibration of the trains, it may be a hardship to me, but it is no wrong. For the railway was authorized and made in order that trains might be run upon it, and without noise and vibration trains cannot be run at all. But if the company makes a cutting, for example, so as to put my house in danger of falling, I shall have my action; for they need not bring down my house to make their cutting. They can provide support for the house, or otherwise conduct their works more carefully. "When the company Edition: current; Page: [119] can construct its works without injury to private rights, it is in general bound to do so"(k). Hence there is a material distinction between cases where the Legislature "directs that a thing shall at all events be done"(l), and those where it only gives a discretionary power with choice of times and places. Where a discretion is given, it must be exercised with regard to the common rights of others. A public body which is by statute empowered to set up hospitals within a certain area, but not empowered to set up a hospital on any specified site, or required to set up any hospital at all, is not protected from liability if a hospital established under this power is a nuisance to the neighbours(m). And even where a particular thing is required to be done, the burden of proof is on the person who has to do it to show that it cannot be done without creating a nuisance(n). A railway company is authorized to acquire land within specified limits, and on any part of that land to erect workshops. This does not justify the company, as against a particular householder, in building workshops so situated (though within the authorized limits) that the smoke from them is a nuisance to him in the occupation of his house(o). But a statutory power to carry cattle by railway, and provide station yards and other buildings for the reception of cattle and other things to be carried (without specification of particular places or times) is incidental to the general purposes for which the railway was authorized, and the use of a piece of land as a cattle yard under this power, though such as would be a Edition: current; Page: [120] nuisance at common law, does not give any right of action to adjoining occupiers(p). Such a case falls within the principle not of Metropolitan Asylum District v. Hill, but of Rex v. Pease.
A gas company was authorized by statute to have its pipes laid under certain streets, and was required to supply gas to the inhabitants. The vestry, being charged by statute with the repair of the streets, but not required or authorized to use any special means, used steam rollers of such weight that the company's pipes were often broken or injured by the resulting pressure through the soil. It was held that, even if the use of such rollers was in itself the best way of repairing the streets in the interest of the ratepayers and the public, the act of the vestry was wrongful as against the gas company, and was properly restrained by injunction(q).
"An Act of Parliament may authorize a nuisance, and if it does so, then the nuisance which it authorizes may be lawfully committed. But the authority given by the Act may be an authority which falls short of authorizing a nuisance. It may be an authority to do certain works provided that they can be done without causing a nuisance, and whether the authority falls within that category is again a question of construction. Again the authority given by Parliament may be to carry out the works without a nuisance, if they can be so carried out, but in the last resort to authorize a nuisance if it is necessary for the construction of the works"(r).Edition: current; Page: [121]
An authority accompanied by compulsory powers, or to be exercised concurrently with authorities ejusdem generis which are so accompanied, will, it seems, be generally treated as absolute; but no single test can be assigned as decisive(s).
Inevitable accident resulting from lawful act. In the cases we have just been considering the act by which the damage is caused has been specially authorized. Let us now turn to the class of cases which differ from these in that the act is not specially authorized, but is simply an act which, in itself, a man may lawfully do then and there; or (it is perhaps better to say) which he may do without breaking any positive law. We shall assume from the first that there is no want of reasonable care on the actor's part. For it is undoubted that if by failure in due care I cause harm to another, however innocent my intention, I am liable. This has already been noted in a general way(t). No less is it certain, on the other hand, that I am not answerable for mere omission to do anything which it was not my specific duty to do.
It is true that the very fact of an accident happening is commonly some evidence, and may be cogent evidence, of want of due care. But that is a question of fact, and there remain many cases in which accidents do happen notwithstanding that all reasonable and practicable care is used. Even the "consummate care" of an expert using special precaution in a matter of special risk or importance is not always successful. Slight negligence may be divided by a very fine line from unsuccessful diligence. But the distinction is real, and we have here to do only with the Edition: current; Page: [122] class of cases where the facts are so given or determined as to exclude any negligence whatever.
Conditions of the inquiry. The question, then, is reduced to this, whether an action lies against me for harm resulting by inevitable accident from an act lawful in itself, and done by me in a reasonable and careful manner. Inevitable accident is not a verbally accurate term, but can hardly mislead; it does not mean absolutely inevitable (for, by the supposition, I was not bound to act at all), but it means not avoidable by any such precaution as a reasonable man, doing such an act then and there, could be expected to take. In the words of Chief Justice Shaw of Massachusetts, it is an accident such as the defendant could not have avoided by use of the kind and degree of care necessary to the exigency, and in the circumstances, in which he was placed.
On principle such accident excludes liability. It may seem to modern readers that only one solution of the problem thus stated is possible, or rather that there is no problem at all(u). No reason is apparent for not accepting inevitable accident as an excuse. It is true that we may suppose the point not to have been considered at all in an archaic stage of law, when legal redress was but a mitigation of the first impulse of private revenge. But private revenge has disappeared from our modern law; moreover we do not nowadays expect a reasonable man to be angry without inquiry. He will not assume, in a case admitting of doubt, that his neighbour harmed him by design or negligence. And one cannot see why a man is to be made an insurer of his neighbour against harm which Edition: current; Page: [123] (by our hypothesis) is no fault of his own. For the doing of a thing lawful in itself with due care and caution cannot be deemed any fault. If the stick which I hold in my hand, and am using in a reasonable manner and with reasonable care, hurts my neighbour by pure accident, it is not apparent why I should be liable more than if the stick had been in another man's hand(v). If we go far back enough, indeed, we shall find a time and an order of ideas in which the thing itself that does damage is primarily liable, so to speak, and through the thing its owner is made answerable. That order of ideas was preserved in the noxal actions of Roman law, and in our own criminal law by the forfeiture of the offending object which had moved, as it was said, to a man's death, under the name of deodand. But this is matter of history, not of modern legal policy. So much we may concede, that when a man's act is the apparent cause of mischief, the burden of proof is on him to show that the consequence was not one which by due diligence he could have prevented(x). But so does (and must) the burden of proving matter of justification or excuse fall in every case on the person taking advantage of it. If he were not, on the first impression of the facts, a wrong-doer, the justification or excuse would not be needed.Edition: current; Page: [124]
Apparent conflict of authorities. We believe that our modern law supports the view now indicated as the rational one, that inevitable accident is not a ground of liability. But there is a good deal of appearance of authority in the older books for the contrary proposition that a man must answer for all direct consequences of his voluntary acts at any rate, or as Judge O. W. Holmes(y) has put it "acts at his peril." Such seems to have been the early Germanic law(z), and such was the current opinion of English lawyers until the beginning of this century, if not later. On the other hand, it will be seen on careful examination that no actual decision goes the length of the dicta which embody this opinion. In almost every case the real question turns out to be of the form of action or pleading. Moreover, there is no such doctrine in Roman or modern Continental jurisprudence(a); and this, although for us not conclusive or even authoritative, is worth considering whenever our own authorities admit of doubt on a point of general principle. And, what is more important for our purpose, the point has been decided in the sense here contended for by Courts Edition: current; Page: [125] of the highest authority in the United States. To these decisions we shall first call attention.
American decisions: The Nitro-glycerine Case. In The Nitro-glycerine Case(b) the defendants, a firm of carriers, received a wooden case at New York to be carried to California. "There was nothing in its appearance calculated to awaken any suspicion as to its contents," and in fact nothing was said or asked on that score. On arrival at San Francisco it was found that the contents (which "had the appearance of sweet oil") were leaking. The case was then, according to the regular course of business, taken to the defendants' offices (which they rented from the plaintiff) for examination. A servant of the defendants proceeded to open the case with a mallet and chisel. The contents, being in fact nitro-glycerine, exploded. All the persons present were killed, and much property destroyed and the building damaged. The action was brought by the landlord for this last-mentioned damage, including that suffered by parts of the building let to other tenants as well as by the offices of the defendants. Nitro-glycerine had not then (namely, in 1866) become a generally known article of commerce, nor were its properties well known. It was found as a fact that the defendants had not, nor had any of the persons concerned in handling the case, knowledge or means of knowledge of its dangerous character, and that the case had been dealt with "in the same way that other cases of similar appearance were usually received and handled, and in the mode that men of prudence engaged in the same business would have handled cases having a similar appearance in the ordinary course of business when ignorant of their contents." The defendants admitted their liability as for Edition: current; Page: [126] waste as to the premises occupied by them (which in fact they repaired as soon as possible after the accident), but disputed it as to the rest of the building.
Doctrine of Supreme Court; no liability for accidental result of lawful act without negligence. The Circuit Court held the defendants were not further liable than they had admitted, and the Supreme Court of the United States affirmed the judgment. It was held that in the first place the defendants were not bound to know, in the absence of reasonable grounds of suspicion, the contents of packages offered them for carriage: and next, that without such knowledge in fact and without negligence they were not liable for damage caused by the accident(c). "No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. . . . . The measure of care against accident which one must take to avoid responsibility is that which a person of ordinary prudence and caution would use if his own interests were to be affected and the whole risk were his own."
Brown v. Kendall (Massachusetts). The Court proceeded to cite with approval the case of Brown v. Kendall in the Supreme Court of Massachusetts(d). There the plaintiff's and the defendant's dogs were fighting: the defendant was beating them in order to separate them, and the plaintiff looking on. "The defendant retreated backwards from before the dogs, striking them as he retreated; and as he approached the plaintiff, with his back towards him, in raising his stick over his shoulder in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe Edition: current; Page: [127] injury." The action was trespass for assault and battery. It was held that the act of the defendant in itself "was a lawful and proper act which he might do by proper and safe means;" and that if "in doing this act, using due care and all proper precautions necessary to the exigency of the case to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and unavoidable(e), and therefore the action would not lie." All that could be required of the defendant was "the exercise of due care adapted to the exigency of the case." The rule in its general form was thus expressed: "If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom."
Other American cases: contrary opinion in Castle v. Duryee (N. Y.). There have been like decisions in the Supreme Courts of New York(f) and Connecticut. And these rulings appear to be accepted as good law throughout the United States(g). The general agreement of American authority and opinion is disturbed, indeed, by one modern case in the Court of Appeal of New York, that of Castle v. Duryee(h). But the conflicting element is not in the decision itself, nor in anything necessary to it. The defendant was the colonel of a regiment of New York militia, who at the time of the cause of action were firing blank cartridge under his immediate orders in the course of a review. The plaintiff was one of a crowd of spectators who stood in front of the firing line and about 350 feet from it. Edition: current; Page: [128] Upon one of the discharges the plaintiff was wounded by a bullet, which could be accounted for only by one of the men's pieces having by some misadventure been loaded with ball cartridge. It appeared that one company had been at target practice an hour or two before, and that at the end of the practice arms had been examined in the usual way(i), and surplus ammunition collected. Moreover, arms had again been inspected by the commanding officers of companies, in pursuance of the colonel's orders, before the line was formed for the regimental parade. The plaintiff sued the defendant in an action "in the nature of trespass for an assault." A verdict for the plaintiff was ultimately affirmed on appeal, the Court being of opinion that there was evidence of negligence. Knowing that some of the men had within a short time been in possession of ball ammunition, the defendant might well have done more. He might have cleared the front of the line before giving orders to fire. The Court might further have supported its decision, though it did not, by the cases which show that more than ordinary care, nay "consummate caution"(j), is required of persons dealing with dangerous weapons. The Chief Judge added that, as the injury was the result of an act done by the defendant's express command, the question of negligence was immaterial. But this was only the learned judge's individual opinion. It was not necessary to the decision, and there is nothing to show that the rest of the Court agreed to it(k).Edition: current; Page: [129]
English authorities: cases of trespass and shooting. We may now see what the English authorities amount to. They have certainly been supposed to show that inevitable accident is no excuse when the immediate result of an act is complained of. Erskine said a century ago in his argument in the celebrated case of The Dean of St. Asaph(l) (and he said it by way of a familiar illustration of the difference between criminal and civil liability) that "if a man rising in his sleep walks into a china shop and breaks everything about him, his being asleep is a complete answer to an indictment for trespass(m), but he must answer in an action for everything he has broken." And Bacon had said earlier to the same purpose, that "if a man be killed by misadventure, as by an arrow at butts, this hath a pardon of course: but if a man be hurt or maimed only, an action of trespass lieth, though it be done against the party's mind and will"(n). Stronger examples could not well be propounded. For walking in one's sleep is not a voluntary act at all, though possibly an act that might have been prevented: and the practice of archery was, when Bacon wrote, a positive legal duty under statutes as recent as Henry VIII.'s time, though on the other hand shooting is an extra-hazardous act(o). We find the same statement about accidents in shooting at a mark in the so-called laws of Henry I.(p), and in the arguments of Edition: current; Page: [130] counsel in a case in the Year-Book of Edward IV., where the general question was more or less discussed(q). Brian (then at the bar) gave in illustration a view of the law exactly contrary to that which was taken in Brown v. Kendall. But the decision was only that if A. cuts his hedge so that the cuttings ipso invito fall on B.'s land, this does not justify A. in entering on B.'s land to carry them off. And by Choke, C. J., it is said, not that (as Brian's view would require) A. must keep his thorns from falling on B.'s land at all events, but that "he ought to show that he could not do it in any other way, or that he did all that was in his power to keep them out."
Weaver v. Ward. Another case usually cited is Weaver v. Ward(r). The plaintiff and the defendant were both members of a trainband exercising with powder, and the plaintiff was hurt by the accidental discharge of the defendant's piece. It is a very odd case to quote for the doctrine of absolute liability, for what was there holden was that in trespass no man shall be excused, "except it may be judged utterly without his fault;" and the defendant's plea was held bad because it only denied intention, and did not properly bring before the Court the question whether the accident was inevitable. A later case(s), which professes to follow Edition: current; Page: [131] Weaver v. Ward, really departs from it in holding that "unavoidable necessity" must be shown to make a valid excuse. This in turn was apparently followed in the next century, but the report is too meagre to be of any value(t).
All these, again, are shooting cases, and if they occurred at this day the duty of using extraordinary care with dangerous things would put them on a special footing. In the celebrated squib case they are cited and more or less relied upon(u). It is not clear to what extent the judges intended to press them. According to Wilson's report, inevitable accident was allowed by all the judges to be an excuse. But Blackstone's judgment, according to his own report, says that nothing but "inevitable necessity" will serve, and adopts the argument of Brian in the case of the cut thorns, mistaking it for a judicial opinion; and the other judgments are stated as taking the same line, though less explicitly. For the decision itself the question is hardly material, though Blackstone may be supposed to represent the view which he thought the more favourable to his own dissenting judgment. His theory was that liability in trespass (as distinguished from an action on the case) is unqualified as regards the immediate consequences of a man's act, but also is limited to such consequences.
Leame v Bray. Then comes Leame v. Bray(x), a comparatively modern case, in which the defendant's chaise had run into the Edition: current; Page: [132] plaintiff's curricle on a dark night. The defendant was driving on the wrong side of the road; which of itself is want of due care, as every judge would now tell a jury as a matter of course. The decision was that the proper form of action was trespass and not case. Grose J. seems to have thought inevitable accident was no excuse, but this was extra-judicial. Two generations later, in Rylands v. Fletcher, Lord Cranworth inclined, or more than inclined, to the same opinion(y). Such is the authority for the doctrine of strict liability. Very possibly more dicta to the same purpose might be collected, but I do not think anything of importance has been left out(z). Although far from decisive, the weight of opinion conveyed by these various utterances is certainly respectable.
Cases where exception allowed. On the other hand we have a series of cases which appear even more strongly to imply, if not to assert, the contrary doctrine. A. and B. both set out in their vessels to look for an abandoned raft laden with goods. A. first gets hold of the raft, then B., and A.'s vessel is damaged by the wind and sea driving B.'s against it. On such facts the Court of King's Bench held in 1770 that A. could not maintain trespass, "being of opinion that the original act of the defendants was not unlawful"(a). Quite early in the century it had been held that if a man's horse runs away with him, and runs over another man, he Edition: current; Page: [133] is not even prima facie a trespasser, so that under the old rules of pleading it was wrong to plead specially in justification(b). Here however it may be said there was no voluntary act at all on the defendant's part. In Wakeman v. Robinson, a modern running-down case(c), the Court conceded that "if the accident happened entirely without default on the part of the defendant, or blame imputable to him, the action does not lie;" thinking, however, that on the facts there was proof of negligence, they refused a new trial, which was asked for on the ground of misdirection in not putting it to the jury whether the accident was the result of negligence or not. In 1842 this declaration of the general rule was accepted by the Court of Queen's Bench, though the decision again was on the form of pleading(d).
Holmes v. Mather. Lastly, we have two decisions well within our own time which are all but conclusive. In Holmes v. Mather(e) the defendant was out with a pair of horses driven by his groom. The horses ran away, and the groom, being unable to stop them, guided them as best he could; at last he failed to get them clear round a corner, and they knocked down the plaintiff. If the driver had not attempted to turn the corner, they would have run straight into a shop-front, and (it was suggested) would not have touched the plaintiff at all. The jury found there was no negligence. Here the driver was certainly acting, for he was trying to turn the horses. And it was argued, on the authority of the old cases and dicta, that a trespass had Edition: current; Page: [134] been committed. The Court refused to take this view, but said nothing about inevitable accident in general. "For the convenience of mankind in carrying on the affairs of life, people as they go along roads must expect, or put up with, such mischief as reasonable care on the part of others cannot avoid"(f). Thus it seems to be made a question not only of the defendant being free from blame, but of the accident being such as is incident to the ordinary use of public roads. The same idea is expressed in the judgment of the Exchequer Chamber in Rylands v. Fletcher, where it is even said that all the cases in which inevitable accident has been held an excuse can be explained on the principle "that the circumstances were such as to show that the plaintiff had taken that risk upon himself"(g).
Stanley v. Powell. More lately, in Stanley v. Powell(h), Denman J. came, on the English authorities alone, to the conclusion above maintained, namely that, where negligence is negatived, an action does not lie for injury resulting by accident from another's lawful act.
Conclusion. These decisions seem good warrant for saying that the principle of The Nitro-glycerine Case and Brown v. Kendall is now part of the common law in England as well as in America. All this inquiry may be thought to belong not so much to the head of exceptions from liability as to the fixing of the principles of liability in the first instance. But such an inquiry must in practice always present itself Edition: current; Page: [135] under the form of determining whether the particular circumstances exclude liability for an act or consequence which is at first sight wrongful. The same remark applies, to some extent, to the class of cases which we take next in order.
Immunity in exercise of common rights. We have just left a topic not so much obscure in itself as obscured by the indirect and vacillating treatment of it in our authorities. That which we now take up is a well settled one in principle, and the difficulties have been only in fixing the limits of application. It is impossible to carry on the common affairs of life without doing various things which are more or less likely to cause loss or inconvenience to others, or even which obviously tend that way; and this in such a manner that their tendency cannot be remedied by any means short of not acting at all. Competition in business is the most obvious example. If John and Peter are booksellers in the same street, each of them must to some extent diminish the custom and profits of the other. So if they are shipowners employing ships in the same trade, or brokers in the same market. So if, instead of John and Peter, we take the three or four railway companies whose lines offer a choice of routes from London to the north. But it is needless to pursue examples. The relation of profits to competition is matter of common knowledge. To say that a man shall not seek profit in business at the expense of others is to say that he shall not do business at all, or that the whole constitution of society shall be altered. Like reasons apply to a man's use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes. In short, life could not go on if we did not, as the price of our own free Edition: current; Page: [136] action, abide some measure of inconvenience from the equal freedom of our neighbours. In these matters veniam petimusque damusque vicissim. Hence the rule of law that the exercise of ordinary rights for a lawful purpose and in a lawful manner is no wrong even if it causes damage(i). It is chiefly in this class of cases that we meet with the phrase or formula damnum sine iniuria; a form of words which, like many other Latin phrases and maxims, is too often thought to serve for an explanation, when in truth it is only an abridgment or memoria technica of the things to be explained. It is also of doubtful elegance as a technical phrase, though in general Latin literature iniuria no doubt had a sufficiently wide meaning(k). In English usage, however, it is of long standing(l).Edition: current; Page: [137]
The case of Gloucester Grammar School. A classical illustration of the rule is given by a case in the Year-Book of Henry IV., which has often been cited in modern books, and which is still perfectly good authority(m). The action was trespass by two masters of the Grammar School of Gloucester against one who had set up a school in the same town, whereby the plaintiffs, having been wont to take forty pence a quarter for a child's schooling, now got only twelve pence. It was held that such an action could not be maintained. "Damnum," said Hankford J., "may be absque iniuria, as if I have a mill and my neighbour build another mill, whereby the profit of my mill is diminished, I shall have no action against him, though it is damage to me . . . . but if a miller disturbs the water from flowing to my mill, or doth any nuisance of the like sort, I shall have such action as the law gives." If the plaintiffs here had shown a franchise in themselves, such as that claimed by the Universities, it might have been otherwise.
Case of mills. A case very like that of the mills suggested by Hankford actually came before the Court of Common Pleas a generation later(n), and Newton C. J. stated the law in much the same terms. Even if the owner of the ancient mill is entitled to sue those who of right ought to grind at his mill, and grind at the new one, he has not any remedy against the owner of the new mill. "He who hath a freehold in the vill may build a mill on his own ground, and this is wrong to no man." And the rule has ever since Edition: current; Page: [138] been treated as beyond question. Competition is in itself no ground of action, whatever damage it may cause. A trader can complain of his rival only if a definite exclusive right, such as a patent right, or the right to a trade mark, is infringed, or if there is a wilful attempt to damage his business by injurious falsehood ("slander of title") or acts otherwise unlawful in themselves. Underselling is not a wrong, though the seller may purposely sell some article at unremunerative prices to attract custom for other articles; nor is it a wrong even to offer advantages to customers who will deal with oneself to the exclusion of a rival(o).
"To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract their business to his own shop, would be a strange and impossible counsel of perfection"(p). "To draw a line between fair and unfair competition, between what is reasonable and unreasonable, passes the power of the Courts. Competition exists where two or more persons seek to possess or to enjoy the same thing; it follows that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition"(q). There is "no restriction imposed by law on competition by one trader with another with the sole object of benefiting himself"(r).
Digging wells, &c. in a man's own land. Another group of authorities of the same class is that which establishes "that the disturbance or removal of the Edition: current; Page: [139] soil in a man's own land, though it is the means (by process of natural percolation) of drying up his neighbour's spring or well, does not constitute the invasion of a legal right, and will not sustain an action. And further, that it makes no difference whether the damage arise by the water percolating away, so that it ceases to flow along channels through which it previously found its way to the spring or well; or whether, having found its way to the spring or well, it ceases to be retained there"(s). The leading cases are Acton v. Blundell(t) and Chasemore v. Richards(u). In the former it was expressly laid down as the governing principle "that the person who owns the surface may dig therein, and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such right he intercepts or drains off the water collected from underground springs in his neighbour's well, this inconvenience to his neighbour falls within the description of damnum absque iniuria which cannot become the ground of an action." In this case the defendant had sunk a deep pit on his own land for mining purposes, and kept it dry by pumping in the usual way, with the result of drying up a well which belonged to the plaintiff, and was used by him to supply his cotton mill.Chasemore v. Richards. Chasemore v. Richards carried the rule a step further in two directions. It settled that it makes no difference if the well or watercourse whose supply is cut off or diminished is ancient, and also (notwithstanding considerable doubt expressed by Lord Wensleydale) that it matters not whether the operations carried on by the owner of the surface are or are not for any purpose connected with the Edition: current; Page: [140]use of the land itself. The defendants in the cause were virtually the Local Board of Health of Croydon, who had sunk a deep well on their own land to obtain a water supply for the town. The making of this well, and the pumping of great quantities of water from it for the use of the town, intercepted water that had formerly found its way into the river Wandle by underground channels, and the supply of water to the plaintiff's ancient mill, situated on that river, was diminished. Here the defendants, though using their land in an ordinary way, were not using it for an ordinary purpose. But the House of Lords refused to make any distinction on that score, and held the doctrine of Acton v. Blundell applicable(x). The right claimed by the plaintiff was declared to be too large and indefinite to have any foundation in law. No reasonable limits could be set to its exercise, and it could not be reconciled with the natural and ordinary rights of landowners. These decisions have been generally followed in the United States(y).
Other applications of same principle. There are many other ways in which a man may use his own property to the prejudice of his neighbour, and yet no action lies. I have no remedy against a neighbour who opens a new window so as to overlook my garden: on the other hand, he has none against me if, at any time before he has gained a prescriptive right to the light, I build a wall or put up a screen so as to shut out his view from that window. But the principle in question is not confined to the use of property. It extends to every exercise of lawful discretion in a man's own affairs. A tradesman Edition: current; Page: [141] may depend in great measure on one large customer. This person, for some cause of dissatisfaction, good or bad, or without any assignable cause at all, suddenly withdraws his custom. His conduct may be unreasonable and ill-conditioned, and the manifest cause of great loss to the tradesman. Yet no legal wrong is done. And such matters could not be otherwise ordered. It is more tolerable that some tradesmen should suffer from the caprice of customers than that the law should dictate to customers what reasons are or are not sufficient for ceasing to deal with a tradesman.
Rogers v. Rajendro Dutt. But there are cases of this class which are not so obvious. A curious one arose at Calcutta at the time of the Indian Mutiny, and was taken up to the Privy Council. Rajendro Dutt and others, the plaintiffs below, were the owners of the Underwriter, a tug employed in the navigation of the Hoogly. A troopship with English troops arrived at the time when they were most urgently needed. For towing up this ship the captain of the tug asked an extraordinary price. Failing to agree with him, and thinking his demand extortionate, Captain Rogers, the Superintendent of Marine (who was defendant in the suit), issued a general order to officers of the Government pilot service that the Underwriter was not to be allowed to take in tow any vessel in their charge. Thus the owners not only failed to make a profit of the necessities of the Government of India, but lost the ordinary gains of their business so far as they were derived from towing ships in the charge of Government pilots. The Supreme Court of Calcutta held that these facts gave a cause of action against Captain Rogers, but the Judicial Committee reversed the decision on appeal(z). The plaintiffs had not been prejudiced in any definite legal right. No one was bound to employ their Edition: current; Page: [142] tug, any more than they were bound to take a fixed sum for its services. If the Government of India, rightly or wrongly, thought the terms unreasonable, they might decline to deal with the plaintiffs both on the present and on other occasions, and restrain public servants from dealing with them.
"The Government certainly, as any other master, may lawfully restrict its own servants as to those whom they shall employ under them, or co-operate with in performing the services for the due performance of which they are taken into its service. Supposing it had been believed that the Underwriter was an ill-found vessel, or in any way unfit for the service, might not the pilots have been lawfully forbidden to employ her until these objections were removed? Would it not indeed have been the duty of the Government to do so? And is it not equally lawful and right when it is honestly believed that her owners will only render their services on exorbitant terms?"(x).
It must be taken that the Court thought the order complained of did not, as a matter of fact, amount to an obstruction of the tug-owners' common right of offering their vessel to the non-official public for employment. Conduct might easily be imagined, on the part of an officer in the defendant's position, which would amount to this. And if it did, it would probably be a cause of action(y).
Whether malice material in these cases. In this last case the harm suffered by the plaintiff in the Court below was not only the natural, but apparently the intended consequence of the act complained of. The defendant however acted from no reason of private hostility, but in the interest (real or supposed) of the public service. Whether the averment and proof of malice, in other words that the act complained of was done with the Edition: current; Page: [143] sole or chief intention of causing harm to the plaintiff as a private enemy(z), would make any difference in cases of this class, does not appear to be finally decided by any authority in our law. In Rogers v. Rajendro Dutt the Judicial Committee expressly declined to say what the decision would be if this element were present. In Chasemore v. Richards the statement of facts (by an arbitrator) on which the case proceeded expressly negatived any intention to harm the plaintiff. Lord Wensleydale thought (apparently with reluctance) that the principle of regarding the presence or absence of such an intention had found no place in our law(a); and partly for that reason he would have liked to draw the line of unquestionable freedom of use at purposes connected with the improvement of the land itself; but he gave no authority for his statement. At the same time it must be allowed that he expressed the general sense of English lawyers(b), and his opinion has now been followed(bb).
Roman doctrine of "animus vicino nocendi." The Roman lawyers on the other hand allowed that "animus vicino nocendi" did or might make a difference. In a passage cited and to some extent relied on (in the scantiness, at that time, of native authority) in Acton v. Edition: current; Page: [144] Blundell, we read: "Denique Marcellus scribit, cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nec de dolo actionem: et sane non debet habere, si non animo vicino nocendi, sed suum agrum meliorem faciendi id fecit"(c). And this view is followed by recognized authorities in the law of Scotland, who say that an owner using his own land must act "not in mere spite or malice, in aemulationem vicini"(d). There seems on principle to be much to recommend it. Certainly it would be no answer to say, as one is inclined to do at first sight, that the law can regard only intentions and not motives. For in some cases the law does already regard motive as distinct from proximate intention, as in actions for malicious prosecution, and in the question of privileged communications in actions for libel. And also this is really a matter of intention. Ulterior motives for a man wishing ill to his neighbour in the supposed case may be infinite: the purpose, the contemplated and desired result, is to do such and such ill to him, to dry up his well, or what else it may be. If our law is to be taken as Lord Wensleydale assumed it to be, its policy must be rested simply on a balance of expediency. Animus vicino nocendi would be very difficult of proof, at all events if proof that mischief was the only purpose were required (and it would hardly do to take less): and the evil of letting a certain kind of churlish and unneighbourly conduct, and even deliberate mischief, go without redress (there being no reason to suppose the kind a common one), may well be thought less on the whole than that of encouraging vexatious claims. In Roman law there is nothing to show whether, and how far, the doctrine of Ulpian and Marcellus was found capable of practical application. I cannot learn that it has much effect in the law of Scotland. It Edition: current; Page: [145] seems proper, however, to point out that there is really no positive English authority on the matter.
Cases of similar names. Again our law does not in general recognize any exclusive right to the use of a name, personal or local. I may use a name similar to that which my neighbour uses—and that whether I inherited or found it, or have assumed it of my own motion—so long as I do not use it to pass off my wares or business as being his. The fact that inconvenience arises from the similarity will not of itself constitute a legal injury(e), and allegations of pecuniary damage will not add any legal effect. "You must have in our law injury as well as damage"(f).
Consent or acceptance of risk (leave and licence). Harm suffered by consent is, within limits to be mentioned, not a cause of civil action. The same is true where it is met with under conditions manifesting acceptance, on the part of the person suffering it, of the risk of that kind of harm. The maxim by which the rule is commonly brought to mind is "Volenti non fit iniuria." "Leave and licence" is the current English phrase for the defence raised in this class of cases. On the one hand, however, volenti non fit iniuria is not universally true. On the other hand, neither the Latin nor the English formula provides in terms for the state of things in which there is not Edition: current; Page: [146] specific will or assent to suffer something which, if inflicted against the party's will, would be a wrong, but only conduct showing that, for one reason or another, he is content to abide the chance of it(g).
Express licence. The case of express consent is comparatively rare in our books, except in the form of a licence to enter upon land. It is indeed in this last connexion that we most often hear of "leave and licence," and the authorities mostly turn on questions of the kind and extent of permission to be inferred from particular language or acts(h).
Limits of consent. Force to the person is rendered lawful by consent in such matters as surgical operations. The fact is common enough; indeed authorities are silent or nearly so, because it is common and obvious. Taking out a man's tooth without his consent would be an aggravated assault and battery. With consent it is lawfully done every day. In the case of a person under the age of discretion, the consent of that person's parent or guardian is generally necessary and sufficient(i). But consent alone is not enough to justify what is on the face of it bodily harm. There must be some kind of just cause, as the cure or extirpation of disease in the case of surgery. Wilful hurt is not excused by consent or assent if it has no reasonable object. Thus if a man licenses another to beat him, not only does this not prevent the assault from being a punishable offence, but the better opinion is that it does not deprive the party beaten of his right of action. On this Edition: current; Page: [147] principle prize-fights and the like "are unlawful even when entered into by agreement and without anger or mutual ill-will"(k). "Whenever two persons go out to strike each other, and do so, each is guilty of an assault"(l). The reason is said to be that such acts are against the peace, or tend to breaches of the peace. But, inasmuch as even the slightest direct application of force, if not justified, was in the language of pleading vi et armis and contra pacem, something more than usual must be meant by this expression. The distinction seems to be that agreement will not justify the wilful causing or endeavouring to cause appreciable bodily harm for the mere pleasure of the parties or others. Boxing with properly padded gloves is lawful, because in the usual course of things harmless. Fighting with the bare fist is not. Football is a lawful pastime, though many kicks are given and taken in it; a kicking match is not. "As to playing at foils, I cannot say, nor was it ever said that I know of, that it is not lawful for a gentleman to learn the use of the small sword; and yet that cannot be learned without practising with foils"(m). Fencing, single-stick, or playing with blunt sabres in the accustomed manner, is lawful, because the players mean no hurt to one another, and take such order by the use of masks and pads that no hurt worth speaking of is likely. A duel with sharp swords after the manner of German students is not lawful, though there be no personal enmity between the men, and Edition: current; Page: [148] though the conditions be such as to exclude danger to life or limb. Here it cannot be said that "bodily harm was not the motive on either side"(n). It seems to be what is called a question of mixed law and fact whether a particular action or contest involves such intention to do real hurt that consent or assent will not justify it(o). Neglect of usual precautions in any pastime known to involve danger would be evidence of wrongful intention, but not conclusive evidence.
Reg. v. Coney. This question was incidentally considered by several of the judges in Reg. v. Coney(p), where the majority of the Court held that mere voluntary presence at an unlawful fight is not necessarily punishable as taking part in an assault, but there was no difference of opinion as to a prize-fight being unlawful, or all persons actually aiding and abetting therein being guilty of assault notwithstanding that the principals fight by mutual consent. The Court had not, of course, to decide anything as to civil liability, but some passages in the judgments are material. Cave J. said: "The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely nor intended to cause bodily harm, is not an assault, and that, an assault being a breach of Edition: current; Page: [149] the peace and unlawful, the consent of the person struck is immaterial. If this view is correct a blow struck in a prize-fight is clearly an assault; but playing with single-sticks or wrestling do not involve an assault, nor does boxing with gloves in the ordinary way"(q). Stephen J. said: "When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. . . . . In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as for instance in cases of wrestling, singlestick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character is a question of degree depending upon circumstances"(r). These opinions seem equally applicable to the rule of civil responsibility(s).
Licence gotten by fraud. A licence obtained by fraud is of no effect. This is too obvious on the general principles of the law to need dwelling upon(t).Edition: current; Page: [150]
Extended meaning of volenti non fit iniuria. Trials of strength and skill in such pastimes as those above mentioned afford, when carried on within lawful bounds, the best illustration of the principle by which the maxim volenti non fit iniuria is enlarged beyond its literal meaning. A man cannot complain of harm (within the limits we have mentioned) to the chances of which he has exposed himself with knowledge and of his free will. Thus in the case of two men fencing or playing at singlestick, volenti non fit iniuria would be assigned by most lawyers as the governing rule, yet the words must be forced. It is not the will of one player that the other should hit him; his object is to be hit as seldom as possible. But he is content that the other shall hit him as much as by fair play he can; and in that sense the striking is not against his will. Therefore the "assault" of the school of arms is no assault in law. Still less is there an actual consent if the fact is an accident, not a necessary incident, of what is being done; as where in the course of a cricket match a player or spectator is struck by the ball. I suppose it has never occurred to any one that legal wrong is done by such an accident even to a spectator who is taking no part in the game. So if two men are fencing, and one of the foils breaks, and the broken end, being thrown off with some force, hits a bystander, no wrong is done to him. Such too is the case put in the Indian Penal Code(u) of a man who stands near another cutting wood with a hatchet, and is struck by the head flying off. It may be said that these examples are trivial. They are so, and for that reason appropriate. They show that the principle is constantly at work, and that we find little about it in our books just because it is unquestioned in common sense as well as in law.Edition: current; Page: [151]
Relation of these cases to inevitable accident. Many cases of this kind seem to fall not less naturally under the exception of inevitable accident. But there is, we conceive, this distinction, that where the plaintiff has voluntarily put himself in the way of risk the defendant is not bound to disprove negligence. If I choose to stand near a man using an axe, he may be a good woodman or not; but I cannot (it is submitted) complain of an accident because a more skilled woodman might have avoided it. A man dealing with explosives is bound, as regards his neighbour's property, to diligence and more than diligence. But if I go and watch a firework-maker for my own amusement, and the shop is blown up, it seems I shall have no cause of action, even if he was handling his materials unskilfully. This, or even more, is implied in the decision in Ilott v. Wilkes(x), where it was held that one who trespassed in a wood, having notice that spring-guns were set there, and was shot by a spring-gun, could not recover. The maxim "volenti non fit iniuria" was expressly held applicable: "he voluntarily exposes himself to the mischief which has happened"(y). The case gave rise to much public excitement, and led to an alteration of the law(z), but it has not been doubted in subsequent authorities that on the law as it stood, and the facts as they came before the Court, it was well decided. As the point of negligence was expressly raised by the Edition: current; Page: [152] pleadings, the decision is an authority that if a man goes out of his way to a dangerous action or state of things, he must take the risk as he finds it. And this appears to be material with regard to the attempt made by respectable authorities, and noticed above, to bring under this principle the head of excuse by reason of inevitable accident(a).
Knowledge of risk opposed to duty of warning. It was held by a majority of the Court of Appeal that if a man undertakes to work in a railway tunnel where he knows that trains are constantly passing, he cannot complain of the railway company for not taking measures to warn the workmen of the approach of trains, and this though he is the servant not of the company but of the contractor(b). The minority held that the railway company, as carrying on a dangerous business, were bound not to expose persons coming by invitation upon their property to any undue risk, and at all events the burden of proof was on them to show that the risk was in fact understood and accepted by the plaintiff(c). "If I invite a man who has no knowledge of the locality to walk along a dangerous cliff which is my property, I owe him a duty different to that which I owe to a man who has all his life birdnested on my rocks"(d).
But where a man goes on doing work under a risk which is known to him, and which does not depend on any one else's acts, or on the condition of the place where the work Edition: current; Page: [153] is done, but is incident to the work itself, he cannot be heard to say that his exposure of himself to such risk was not voluntary(e).
Cases between employers and their workmen: Smith v. Baker. The principle expressed by volenti non fit iniuria is different from that of contributory negligence(f), as it is in itself independent of the contract of service or any other contract(g). It does not follow that a man is negligent or imprudent because he chooses to encounter a risk which he knows and appreciates; but if he does voluntarily run the risk, he cannot complain afterwards(h). At the same time knowledge is not of itself conclusive. The maxim is volenti—not scienti—non fit iniuria; "the question whether in any particular case a plaintiff was volens or nolens is a question of fact and not of law"(i). A workman is not bound, for example, to throw up his employment rather than go on working with appliances which he knows or suspects to be dangerous; and continuing to use such appliances if the employer cannot or will not give him better is not conclusive to show that he voluntarily takes the attendant risk(k). As between an employer and his own workmen, it is hardly possible to separate the question of knowledge and acceptance of a particular risk from the question whether it was a term in the contract of service (though it is seldom, if ever, an Edition: current; Page: [154] express term) that the workman should accept that risk. Since the Employers' Liability Act has deprived the master, as we have already seen, of the defence of "common employment" in a considerable number of cases, the defence of volenti non fit iniuria has several times been resorted to, with the effect of raising complicated discussion on tolerably simple facts. By treating the maxim as if it were of literal authority (which no maxim is), and then construing it largely, something very like the old doctrine of "common employment" might have been indirectly restored. For some time there was appreciable danger of this result. But the tendency was effectually checked by the decision of the House of Lords in Smith v. Baker(e). Except where there is an obvious and necessary danger in the work itself, it must be a question of fact in every case whether there was an agreement or at any rate consent to take the risk. "Where a person undertakes to do work which is intrinsically dangerous, notwithstanding that reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily subjects himself to the risks inevitably accompanying it, and cannot, if he suffers, be permitted to complain that a wrong has been done him, even though the cause from which he suffers might give to others a right of action:" as in the case of works unavoidably producing noxious fumes. But where "a risk to the employed, which may or may not result in injury, has been created or enhanced by the negligence of the employer," there "the mere continuance in service, with knowledge of the risk," does not "preclude the employed, if he suffer from such negligence, from recovering in respect of his employer's breach of duty"(f). And it seems that Edition: current; Page: [155] (apart from contracts to take a class of risks) there must be consent to the particular act or operation which is hazardous, not a mere general assent inferred from knowledge that risk of a certain kind is possible(g).
Distinction where no negligence at all. Cases of volenti non fit iniuria are of course to be distinguished from cases of pure unexpected accident where there is no proof of any negligence at all on the defendant's part(h). It seems that Thomas v. Quartermaine, though not so dealt with, was really a case of this latter kind(i).
In the construction of a policy of insurance against death or injury by accident, an exception of harm "happening by exposure of the insured to obvious risk of injury" includes accidents due to a risk which would have been obvious to a person using common care and attention(k).
Distinction fromcases where negligence is ground of action. We now see that the whole law of negligence assumes the principle of volenti non fit iniuria not to be applicable. It was suggested in Holmes v. Mather(l) that when a competent driver is run away with by his horses, and in spite of all he can do they run over a foot-passenger, the foot-passenger is disabled from suing, not simply because the driver has done no wrong, but because people who walk along a road must take the ordinary risks of traffic. But if this were so, why stop at misadventure without negligence? It is common knowledge that not all drivers Edition: current; Page: [156] are careful. It is known, or capable of being known, that a certain percentage are not careful. "No one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over"(m). The actual risk to which a man crossing the street is exposed (apart from any carelessness on his own part) is that of pure misadventure, and also that of careless driving, the latter element being probably the greater. If he really took the whole risk, a driver would not be liable to him for running over him by negligence: which is absurd. Are we to say, then, that he takes on himself the one part of the risk and does not take the other? A reason thus artificially limited is no reason at all, but a mere fiction. It is simpler and better to say plainly that the driver's duty is to use proper and reasonable care, and beyond that he is not answerable. The true view, we submit, is that the doctrine of voluntary exposure to risk has no application as between parties on an equal footing of right, of whom one does not go out of his way more than the other. A man is not bound at his peril to fly from a risk from which it is another's duty to protect him, merely because the risk is known(n). Much the same principle has in late years been applied, and its limits discussed, in the special branch of the law which deals with contributory negligence. This we shall have to consider in its place(o).
Works of necessity. A class of exceptions as to which there is not much authority, but which certainly exists in every system of law, is that of acts done of necessity to avoid a greater harm, and on that ground justified. Pulling down houses to stop a fire(p), and casting goods overboard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of general average assumes, as its very foundation, that the destruction of property under such conditions of danger is justifiable(q). It is said also that "in time of war one shall justify entry on another's land to make a bulwark in defence of the king and the kingdom." In these cases the apparent wrong "sounds for the public good"(r). There are also circumstances in which a man's property or person may have to be dealt with promptly for his own obvious good, but his consent, or the consent of any one having lawful authority over him, cannot be obtained in time. Here it is evidently justifiable to do, in a proper and reasonable manner, what needs to be done. It has never been supposed to be even technically a trespass if I throw water on my neighbour's goods to save them from fire, or seeing his house on fire, enter peaceably on his land to help in putting it out(s). Nor is it an assault for the Edition: current; Page: [158] first passer-by to pick up a man rendered insensible by an accident, or for a competent surgeon, if he perceives that an operation ought forthwith to be performed to save the man's life, to perform it without waiting for him to recover consciousness and give his consent. These works of charity and necessity must be lawful as well as right. Our books have only slight and scattered hints on the subject, probably because no question has ever been made(t).
It seems that on the same principle a stranger may justify interfering with the goods of a lately deceased person so far, but only so far, as required for the protection of the estate or for other purposes of immediate necessity(u).
Self-defence. Self-defence (or rather private defence(v), for defence of one's self is not the only case) is another ground of immunity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is unlawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral duty. Therefore it would be Edition: current; Page: [159] a grave mistake to regard self-defence as a necessary evil suffered by the law because of the hardness of men's hearts. The right is a just and perfect one. It extends not only to the defence of a man's own person, but to the defence of his property or possession. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant(w). At the same time no right is to be abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means. But this probably applies (so far as it is the law) only to criminal liability(x). On the other hand if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong before the law by acting on the supposition that it is really loaded and capable of shooting. "Honest and reasonable belief of immediate danger" is enough(y).Edition: current; Page: [160]
Killing of animals in defence of property. Cases have arisen on the killing of animals in defence of one's property. Here, as elsewhere, the test is whether the party's act was such as he might reasonably, in the circumstances, think necessary for the prevention of harm which he was not bound to suffer. Not very long ago the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed(z). Some of these, such as Deane v. Clayton(a), turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defending his property or for any other purpose which is not actually unlawful.
As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It has to be considered, however, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately.
Assertion of rights distinguished from self-defence. Self-defence does not include the active assertion of a disputed right against an attempt to obstruct its exercise. Edition: current; Page: [161] I am not justified in shooting, or offering to shoot, one who obstructs my right of way, though I may not be able to pass him otherwise, and though I am justified in resisting, within due bounds, any active force used on his part. It seems the better opinion "that the use of force which inflicts or may inflict grievous bodily harm or death—of what in short may be called extreme force—is justifiable only for the purpose of strict self-defence"(b). I may be justified in pushing past the obstructor, but this is not an act of self-defence at all; it is the pure and simple exercise of my right itself(c).
Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a sufficient justification or excuse in a criminal prosecution will equally suffice in a civil action.
Injury to third persons from acts of self-defence. Some of the dicta in the well-known case of Scott v. Shepherd(d) go the length of suggesting that a man acting on the spur of the moment under "compulsive necessity" (the expression of De Grey C.J.) is excusable as not being a voluntary agent, and is therefore not bound to take any care at all. But this appears very doubtful. In that case it is hard to believe that Willis or Ryal, if he had been worth suing and had been sued, could have successfully made such a defence. They "had . . . . . a right to protect themselves by removing the squib, but should have taken care"—at any rate such care as was practicable under the circumstances—"to do it in such a manner as not to endamage others"(e). The Roman lawyers held that a Edition: current; Page: [162] man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant(f). Perhaps this is a harsh opinion, but it seems better, if the choice must be made, than holding that one may with impunity throw a lighted squib across a market-house full of people in order to save a stall of gingerbread. At all events a man cannot justify doing for the protection of his own property a deliberate act whose evident tendency is to cause, and which does cause, damage to the property of an innocent neighbour. Thus if flood water has come on my land by no fault of my own, this does not entitle me to let it off by means which in the natural order of things cause it to flood an adjoining owner's land(g).
Harm suffered by a wrong-doer: doubtful whether any special disability. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer. But there is no such general rule of law. If there were, one consequence would be that an occupier of land (or even a fellow trespasser) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook(h) a trespasser who was wounded by a spring-gun Edition: current; Page: [163] set without notice was held entitled to maintain his action. And generally, "a trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained"(i). It does not appear on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.'s possession were lawful? Suppose there were no statutory regulation at all: still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought Edition: current; Page: [164] himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the doctrine; as if contributory negligence were a sort of positive wrong for which a man is to be punished. This, however, we shall have to consider hereafter. On the whole it may be doubted whether a mere civil wrong-doing, such as trespass to land, ever has in itself the effect now under consideration. Almost every case that can be put seems to fall just as well, if not better, under the principle that a plaintiff who has voluntarily exposed himself to a known risk cannot recover, or the still broader rule that a defendant is liable only for those consequences of his acts which are, in the sense explained in a former chapter(k), natural and probable.
Conflict of opinion in United States in cases of Sunday travelling. In America there has been a great question, upon which there have been many contradictory decisions, whether the violation of statutes against Sunday travelling is in itself a bar to actions for injuries received in the course of such travelling through defective condition of roads, negligence of railway companies, and the like. In Massachusetts (where the law has since been altered by statute), it was held that a plaintiff in such circumstances could not recover, although the accident might just as well have happened on a journey lawful for all purposes. These decisions must be supported, if at all, by a strict view of the policy of the local statutes for securing the observance of Sunday. They are not generally considered good law, and have been expressly dissented from in some other States(l).Edition: current; Page: [165]
The principle now defined by the Supreme Court of Massachusetts as generally applicable is that illegal conduct of the plaintiff which contributed directly and proximately to the injury suffered by him is equivalent, as matter of law, to contributory negligence(m).
Cause of action connected with unlawful agreement. It is a rule not confined to actions on contracts that "the plaintiff cannot recover where in order to maintain his supposed claim he must set up an illegal agreement to which he himself has been a party"(n): but its application to actions of tort is not frequent or normal. The case from which the foregoing statement is cited is the only clear example known to the writer, and its facts were very peculiar.
Diversity of remedies. At common law there were only two kinds of redress for an actionable wrong. One was in those cases—exceptional cases according to modern law and practice—where it was and is lawful for the aggrieved party, as the common phrase goes, to take the law into his own hands. The other way was an action for damages(a). Not that a suitor might not obtain, in a proper case, other and more effectual redress than money compensation; but he could not have it from a court of common law. Specific orders and prohibitions in the form of injunctions or otherwise were (with few exceptions, if any)(b) in the hand of the Chancellor alone, and the principles according to which they were granted or withheld were counted among the mysteries of Equity. But no such distinctions exist under the system of the Judicature Acts, and every branch of the Court has power to administer every remedy. Therefore Edition: current; Page: [167] we have at this day, in considering one and the same jurisdiction, to bear in mind the manifold forms of legal redress which for our predecessors were separate and unconnected incidents in the procedure of different courts.
Self-help. Remedies available to a party by his own act alone may be included, after the example of the long established German usage, in the expressive name of self-help. The right of private defence appears at first sight to be an obvious example of this. But it is not so, for there is no question of remedy in such a case. We are allowed to repel force by force "not for the redress of injuries, but for their prevention"(c); not in order to undo a wrong done or to get compensation for it, but to cut wrong short before it is done; and the right goes only to the extent necessary for this purpose. Hence there is no more to be said of self-defence, in the strict sense, in this connexion. It is only when the party's lawful act restores to him something which he ought to have, or puts an end to a state of things whereby he is wronged, or at least puts pressure on the wrong-doer to do him right, that self-help is a true remedy. And then it is not necessarily a complete or exclusive remedy. The acts of this nature which we meet with in the law of torts are expulsion of a trespasser, retaking of goods by the rightful possessor, distress damage feasant, and abatement of nuisances. Peaceable re-entry upon land where there has been a wrongful change of possession is possible, but hardly occurs in modern experience. Analogous to the right of retaking goods is the right of appropriating or retaining debts under certain conditions; and various forms of lien are more or less analogous to distress. These, however, belong to the domain of contract, and we are not now Edition: current; Page: [168] concerned with them. Such are the species of remedial self-help recognized in the law of England. In every case alike the right of the party is subject to the rule that no greater force must be used, or damage done to property, than is necessary for the purpose in hand. In some cases the mode of exercising the right has been specially modified or regulated. Details will best be considered hereafter in relation to the special kinds of wrong to which these kinds of redress are applicable(d).
Judicial remedies: damages. We pass, then, from extra-judicial to judicial redress, from remedies by the act of the party to remedies by the act of the law. The most frequent and familiar of these is the awarding of damages(e). Whenever an actionable wrong has been done, the party wronged is entitled to recover damages; though, as we shall immediately see, this right is not necessarily a valuable one. His title to recover is a conclusion of law from the facts determined in the cause. How much he shall recover is a matter of judicial discretion, a discretion exercised, if a jury tries the cause, by the jury under the guidance of the judge. As we have had occasion to point out in a former chapter(f), the rule as to "measure of damages" is laid down by the Court and applied by the jury, whose application of it is, to a certain extent, subject to review. The grounds on which the verdict of a jury may be set aside are all reducible to this principle: the Court, namely, must be satisfied not only that its own finding would have been different (for there is a wide field within which opinions and estimates may fairly differ)(g), but that the jury did Edition: current; Page: [169] not exercise a due judicial discretion at all(h). Among these grounds are the awarding of manifestly excessive or manifestly inadequate damages, such as to imply that the jury disregarded, either by excess or by defect, the law laid down to them as to the elements of damage to be considered(i), or, it may be, that the verdict represents a compromise between jurymen who were really not agreed on the main facts in issue(j).
Nominal damages. Damages may be nominal, ordinary, or exemplary. Nominal damages are a sum of so little value as compared with the cost and trouble of suing that it may be said to have "no existence in point of quantity"(k), such as a shilling or a penny, which sum is awarded with the purpose of not giving any real compensation. Such a verdict means one of two things. According to the nature of the case it may be honourable or contumelious to the plaintiff. Either the purpose of the action is merely to establish a right, no substantial harm or loss having been suffered, or else the jury, while unable to deny that some legal wrong has been done to the plaintiff, have formed a very low opinion of the general merits of his case. This again may be on the ground that the harm he suffered was not worth suing for, or that his own conduct had been such that whatever he did suffer at the defendant's hands was morally deserved. The former state of things, where the verdict really operates as a simple declaration of rights between the parties, is most commonly exemplified in actions of trespass brought to settle disputed claims to Edition: current; Page: [170] rights of way, rights of common, and other easements and profits. It is not uncommon to give forty shillings damages in these cases if the plaintiff establishes his right, and if it is not intended to express any disapproval of his conduct(l). The other kind of award of nominal damages, where the plaintiff's demerits earn him an illusory sum such as one farthing, is illustrated chiefly by cases of defamation, where the words spoken or written by the defendant cannot be fully justified, and yet the plaintiff has done so much to provoke them, or is a person of such generally worthless character, as not to deserve, in the opinion of the jury, any substantial compensation(m). This has happened more than once in actions against the publishers of newspapers which were famous at the time, but have not found a place in the regular reports. Nominal damages may also be given where there has been some excess in generally justifiable acts of self-defence or self-help(n).
Nominal damages possible only when an absolute right is infringed. The enlarged power of the Court over costs since the Judicature Acts has made the question of nominal damages, which, under the old procedure, were described as "a mere peg on which to hang costs"(o), much less important Edition: current; Page: [171] than it formerly was. But the possibility of recovering nominal damages is still a test, to a certain extent, of the nature of the right claimed. Infringements of absolute rights like those of personal security and property give a cause of action without regard to the amount of harm done, or to there being harm estimable at any substantial sum at all. As Holt C. J. said in a celebrated passage of his judgment in Ashby v. White(p), "a damage is not merely pecuniary, but an injury imports a damage, when a man is thereby hindered of his right. As in an action for slanderous words, though a man does not lose a penny by reason of the speaking them, yet he shall have an action. So if a man gives another a cuff on the ear, though it cost him nothing, no not so much as a little diachylon, yet he shall have his action, for it is a personal injury. So a man shall have an action against another for riding over his ground, though it do him no damage; for it is an invasion of his property, and the other has no right to come there."
Cases where damage is the gist of the action. On the other hand, there are cases even in the law of property where, as it is said, damage is the gist of the action, and there is not an absolute duty to forbear from doing a certain thing, but only not to do it so as to cause actual damage. The right to the support of land as between adjacent owners, or as between the owner of the surface and the owner of the mine beneath, is an example. Here there is not an easement, that is, a positive right to restrain the neighbour's use of his land, but a right to the Edition: current; Page: [172] undisturbed enjoyment of one's own. My neighbour may excavate in his own land as much as he pleases, unless and until there is actual damage to mine: then, and not till then, a cause of action arises for me(q). Negligence, again, is a cause of action only for a person who suffers actual harm by reason of it. A man who rides furiously in the street of a town may thereby render himself liable to penalties under a local statute or by-law; but he does no wrong to any man in particular, and is not liable to a civil action, so long as his reckless behaviour is not the cause of specific injury to person or property. The same rule holds of nuisances. So, in an action of deceit, the cause of action is the plaintiff's having suffered damage by acting on the false statement made to him by the defendant(r). In all these cases there can be no question of nominal damages, the proof of real damage being the foundation of the plaintiff's right. It may happen, of course, that though there is real damage there is not much of it, and that the verdict is accordingly for a small amount. But the smallness of the amount will not make such damages nominal if they are arrived at by a real estimate of the harm suffered. In a railway accident due to the negligence of the railway company's servants one man may be crippled for life, while another is disabled for a few days, and a third only has his clothes damaged to the value of five shillings. Every one of them is entitled, neither more nor less than the others, to have amends according to his loss.Edition: current; Page: [173]
Peculiarity of law of defamation. In the law of slander we have a curiously fine line between absolute and conditional title to a legal remedy; some kinds of spoken defamation being actionable without any allegation or proof of special damage (in which case the plaintiff is entitled to nominal damages at least), and others not; while as to written words no such distinction is made. The attempts of text-books to give a rational theory of this are not satisfactory. Probably the existing condition of the law is the result of some obscure historical accident(s).
Ordinary damages. Ordinary damages are a sum awarded as a fair measure of compensation to the plaintiff, the amount being, as near as can be estimated, that by which he is the worse for the defendant's wrong-doing, but in no case exceeding the amount claimed by the plaintiff himself(t). Such amount is not necessarily that which it would cost to restore the plaintiff to his former condition. Where a tenant for years carried away a large quantity of valuable soil from his holding, it was decided that the reversioner could recover not what it would cost to replace the soil, but only the amount by which the value of the reversion was diminished(u). In other words compensation, not restitution, is the proper test. Beyond this it is hardly Edition: current; Page: [174] possible to lay down any universal rule for ascertaining the amount, the causes and circumstances of actionable damage being infinitely various. And in particular classes of cases only approximate generalization is possible. In proceedings for the recovery of specific property or its value there is not so much difficulty in assigning a measure of damages, though here too there are unsettled points(v). But in cases of personal injury and consequential damage by loss of gains in a business or profession it is not possible either completely to separate the elements of damage, or to found the estimate of the whole on anything like an exact calculation(x). There is little doubt that in fact the process is often in cases of this class even a rougher one than it appears to be, and that legally irrelevant circumstances, such as the wealth and condition in life of the parties, have much influence on the verdicts of juries: a state of things which the law does not recognize, but practically tolerates within large bounds.
Exemplary damages. One step more, and we come to cases where there is great injury without the possibility of measuring compensation by any numerical rule, and juries have been not only allowed but encouraged to give damages that express indignation at the defendant's wrong rather than a value set upon the plaintiff's loss. Damages awarded on this principle are called exemplary or vindictive. The kind of wrongs to which they are applicable are those which, besides the violation of a right or the actual damage, import insult or outrage, and so are not merely injuries but iniuriae in the strictest Roman sense of the term. Edition: current; Page: [175] The Greek ὕβρις perhaps denotes with still greater exactness the quality of the acts which are thus treated. An assault and false imprisonment under colour of a pretended right in breach of the general law, and against the liberty of the subject(y); a wanton trespass on land, persisted in with violent and intemperate behaviour(z); the seduction of a man's daughter with deliberate fraud, or otherwise under circumstances of aggravation(a); such are the acts which, with the open approval of the Courts, juries have been in the habit of visiting with exemplary damages. Gross defamation should perhaps be added; but there it is rather that no definite principle of compensation can be laid down than that damages can be given which are distinctly not compensation. It is not found practicable to interfere with juries either way(b), unless their verdict shows manifest mistake or improper motive. There are other miscellaneous examples of an estimate of damages coloured, so to speak, by disapproval of the defendant's conduct (and in the opinion of the Court legitimately so), though it be not a case for vindictive or exemplary damages in the proper sense. In an action for trespass to land or goods substantial damages may be recovered though no loss or Edition: current; Page: [176] diminution in value of property may have occurred(c). In an action for negligently pulling down buildings to an adjacent owner's damage, evidence has been admitted that the defendant wanted to disturb the plaintiff in his occupation, and purposely caused the work to be done in a reckless manner: and it was held that the judge might properly authorize a jury to take into consideration the words and conduct of the defendant "showing a contempt of the plaintiff's rights and of his convenience"(d). Substantial damages have been allowed for writing disparaging words on a paper belonging to the plaintiff, although there was no publication of the libel(e).
"It is universally felt by all persons who have had occasion to consider the question of compensation, that there is a difference between an injury which is the mere result of such negligence as amounts to little more than accident, and an injury, wilful or negligent, which is accompanied with expressions of insolence. I do not say that in actions of negligence there should be vindictive damages such as are sometimes given in actions of trespass, but the measure of damage should be different, according to the nature of the injury and the circumstances with which it is accompanied"(f).
The case now cited was soon afterwards referred to by Willes J. as an authority that a jury might give exemplary damages, though the action was not in trespass, from the character of the wrong and the way in which it was done(g).Edition: current; Page: [177]
Analogy of breach of promise of marriage to torts in this respect. The action for breach of promise of marriage, being an action of contract, is not within the scope of this work; but it has curious points of affinity with actions of tort in its treatment and incidents; one of which is that a very large discretion is given to the jury as to damages(h).
Mitigation of damages. As damages may be aggravated by the defendant's illbehaviour or motives, so they may be reduced by proof of provocation, or of his having acted in good faith: and many kinds of circumstances which will not amount to justification or excuse are for this purpose admissible and material. "In all cases where motive may be ground of aggravation, evidence on this score will also be admissible in reduction of damages"(i). For the rest, this is an affair of common knowledge and practice rather than of reported authority.
Concurrent but severable causes of action. "Damages resulting from one and the same cause of action must be assessed and recovered once for all"; but where the same facts give rise to two distinct causes of action, though between the same parties, action and judgment for one of these causes will be no bar to a subsequent action on the other. A man who has had a verdict for personal injuries cannot bring a fresh action if he afterwards finds that his hurt was graver than he supposed. On the other hand, trespass to goods is not the same cause of action as trespass to the person, and the same principle holds of injuries caused not by voluntary trespass, but by negligence; therefore where the plaintiff, driving a cab, was run down by a van negligently driven by the defendant's servant, and the cab was damaged and the plaintiff suffered bodily harm, it was held that after suing and recovering Edition: current; Page: [178] for the damage to the cab the plaintiff was free to bring a separate action for the personal injury(k). Apart from questions of form, the right to personal security certainly seems distinct in kind from the right to safe enjoyment of one's goods, and such was the view of the Roman lawyers(l).
Injunctions. Another remedy which is not, like that of damages, universally applicable, but which is applied to many kinds of wrongs where the remedy of damages would be inadequate or practically worthless, is the granting of an injunction to restrain the commission of wrongful acts threatened, or the continuance of a wrongful course of action already begun. There is now no positive limit to the jurisdiction of the Court to issue injunctions, beyond the Court's own view (a judicial view, that is) of what is just and convenient(m). Practically, however, the lines of the old equity jurisdiction have thus far been in the main preserved. The kinds of tort against which this remedy is commonly sought are nuisances, violations of specific rights of property in the nature of nuisance, such as obstruction of light and disturbance of easements, continuing trespasses, and infringements of copyright and trademarks. In one direction the High Court has, since the Judicature Acts, distinctly accepted and exercised an increased jurisdiction. It will now restrain, whether by final(n) or Edition: current; Page: [179] interlocutory(o) injunction, the publication of a libel or, in a clear case, the oral uttering of slander(p) calculated to injure the plaintiff in his business. In interlocutory proceedings, however, this jurisdiction is exercised with caution(o), and only in a very clear case(q), and not where the libel, however unjustifiable, does not threaten immediate injury to person or property(r).
On what principle granted. The special rules and principles by which the Court is guided in administering this remedy can be profitably discussed only in connexion with the particular causes of action upon which it is sought. All of them, however, are developments of the one general principle that an injunction is granted only where damages would not be an adequate remedy, and an interim injunction only where delay would make it impossible or highly difficult to do complete justice at a later stage(s). In practice very many causes were in the Court of Chancery, and still are, really disposed of on an application for an injunction which is in form interlocutory: the proceedings being treated as final by consent, when it appears that the decision of the interlocutory question goes to the merits of the whole case.
Former concurrent jurisdiction of common law and equity to give compensation for fraud. In certain cases of fraud (that is, wilfully or recklessly false representation of fact) the Court of Chancery had Edition: current; Page: [180] before the Judicature Acts concurrent jurisdiction with the courts of common law, and would award pecuniary compensation, not in the name of damages, indeed, but by way of restitution or "making the representation good"(t). In substance, however, the relief came to giving damages under another name, and with more nicety of calculation than a jury would have used. Since the Judicature Acts it does not appear to be material whether the relief administered in such a case be called damages or restitution; unless indeed it were contended in such a case that (according to the rule of damages as regards injuries to property)(u) the plaintiff was entitled not to be restored to his former position or have his just expectation fulfilled, but only to recover the amount by which he is actually the worse for the defendant's wrong-doing. Any contention of that kind would no doubt be effectually excluded by the authorities in equity; but even without them it would scarcely be a hopeful one.
Special statutory remedies, when exclusive. Duties of a public nature are constantly defined or created by statute, and generally, though not invariably, special modes of enforcing them are provided by the same statutes. Questions have arisen as to the rights and remedies of persons who suffer special damage by the breach Edition: current; Page: [181] or non-performance of such duties. Here it is material (though not necessarily decisive) to observe to whom and in what form the specific statutory remedy is given. If the Legislature, at the same time that it creates a new duty, points out a special course of private remedy for the person aggrieved (for example, an action for penalties to be recovered, wholly or in part, for the use of such person), then it is generally presumed that the remedy so provided was intended to be, and is, the only remedy. The provision of a public remedy without any special means of private compensation is in itself consistent with a person specially aggrieved having an independent right of action for injury caused by a breach of the statutory duty(v). And it has been thought to be a general rule that where the statutory remedy is not applicable to the compensation of a person injured, that person has a right of action(w). But the Court of Appeal has repudiated any such fixed rule, and has laid down that the possibility or otherwise of a private right of action for the breach of a public statutory duty must depend on the scope and language of the statute taken as a whole. A waterworks company was bound by the Waterworks Clauses Act, 1847, incorporated in the company's special Act, to maintain a proper pressure in its pipes, under certain public penalties. It was held that an inhabitant of the district served by the company under this Act had no cause of action against the company for damage done to his property by fire by reason of the pipes being insufficiently charged. The Court thought it unreasonable to suppose that Parliament Edition: current; Page: [182] intended to make the company insurers of all property that might be burnt within their limits by reason of deficient supply or pressure of water(w).
No private redress unless the harm suffered is within the mischief aimed at by the statute. Also the harm in respect of which an action is brought for the breach of a statutory duty must be of the kind which the statute was intended to prevent. If cattle being carried on a ship are washed overboard for want of appliances prescribed by an Act of Parliament for purely sanitary purposes, the shipowner is not liable to the owner of the cattle by reason of the breach of the statute(x): though he will be liable if his conduct amounts to negligence apart from the statute and with regard to the duty of safe carriage which he has undertaken(y), and in an action not founded on a statutory duty the disregard of such a duty, if likely to cause harm of the kind that has been suffered, may be a material fact(z).
Joint wrong-doers may be sued jointly or severally: but judgment against any is bar to further action. Where more than one person is concerned in the commission of a wrong, the person wronged has his remedy against all or any one or more of them at his choice. Every wrong-doer is liable for the whole damage, and it Edition: current; Page: [183] does not matter (as we saw above)(a), whether they acted, as between themselves, as equals, or one of them as agent or servant of another. There are no degrees of responsibility, nothing answering to the distinction in criminal law between principals and accessories. But when the plaintiff in such a case has made his choice, he is concluded by it. After recovering judgment against some or one of the joint authors of a wrong, he cannot sue the other or others for the same matter, even if the judgment in the first action remains unsatisfied. By that judgment the cause of action "transit in rem iudicatam," and is no longer available(b). The reason of the rule is stated to be that otherwise a vexatious multiplicity of actions would be encouraged.
Rules as to contribution and indemnity. As between joint wrong-doers themselves, one who has been sued alone and compelled to pay the whole damages has no right to indemnity or contribution from the other(c), if the nature of the case is such that he "must be presumed to have known that he was doing an unlawful act"(d). Otherwise, "where the matter is indifferent in itself," and the wrongful act is not clearly illegal(e), but may have been done in honest ignorance, or in good faith to determine a claim of right, there is no objection to contribution or indemnity being claimed. "Every man Edition: current; Page: [184] who employs another to do an act which the employer appears to have a right to authorize him to do undertakes to indemnify him for all such acts as would be lawful if the employer had the authority he pretends to have." Therefore an auctioneer who in good faith sells goods in the way of his business on behalf of a person who turns out to have no right to dispose of them is entitled to be indemnified by that person against the resulting liability to the true owner(f). And persons entrusted with goods as wharfingers or the like who stop delivery in pursuance of their principal's instructions may claim indemnity if the stoppage turns out to be wrongful, but was not obviously so at the time(g). In short, the proposition that there is no contribution between wrong-doers must be understood to affect only those who are wrong-doers in the common sense of the word as well as in law. The wrong must be so manifest that the person doing it could not at the time reasonably suppose that he was acting under lawful authority. Or, to put it summarily, a wrong-doer by misadventure is entitled to indemnity from any person under whose apparent authority he acted in good faith; a wilful or negligent(h) wrong-doer has no claim to contribution or indemnity. There does not appear any reason why contribution should not be due in some cases without any relation of agency and authority between the parties. If several persons undertake in concert to abate an obstruction to a supposed highway, having a reasonable claim of Edition: current; Page: [185] right and acting in good faith for the purpose of trying the right, and it turns out that their claim cannot be maintained, it seems contrary to principle that one of them should be compellable to pay the whole damages and costs without any recourse over to the others. I cannot find, however, that any decision has been given on facts of this kind; nor is the question very likely to arise, as the parties would generally provide for expenses by a subscription fund or guaranty.
Supposed rule of trespass being "merged in felony. It has been currently said, sometimes laid down, and once or twice acted on as established law, that when the facts affording a cause of action in tort are such as to amount to a felony, there is no civil remedy against the felon(i) for the wrong, at all events before the crime has been prosecuted to conviction. And as, before 1870(j), a convicted felon's property was forfeited, there would at common law be no effectual remedy afterwards. So that the compendious form in which the rule was often stated, that "the trespass was merged in the felony," was substantially if not technically correct. But so much doubt has been thrown upon the supposed rule in several recent cases, that it seems, if not altogether exploded, to be only awaiting a decisive abrogation. The result of the cases in question is that, although it is difficult to deny that some such rule exists, the precise extent of the rule, and the reasons of policy on which it is founded, are uncertain, and it is not known what is the proper mode of applying it. Edition: current; Page: [186] As to the rule, the best supported version of it appears to be to this effect: Where the same facts amount to a felony and are such as in themselves would constitute a civil wrong, a cause of action for the civil wrong does arise. But the remedy is not available for a person who might have prosecuted the wrong-doer for the felony, and has failed to do so. The plaintiff ought to show that the felon has actually been prosecuted to conviction (by whom it does not matter, nor whether it was for the same specific offence), or that prosecution is impossible (as by the death of the felon or his immediate escape beyond the jurisdiction), or that he has endeavoured to bring the offender to justice, and has failed without any fault of his own(k).
No known means of enforcing the rule, if indeed it exists. It is admitted that when any of these conditions is satisfied there is both a cause of action and a presently available remedy. But if not, what then? It is said to be the duty of the person wronged to prosecute for the felony before he brings a civil action; "but by what means that duty is to be enforced, we are nowhere informed"(l). Its non-performance is not a defence which can be set up by pleading(m), nor is a statement of claim bad for showing on the face of it that the wrongful act was felonious(n). Neither can the judge nonsuit the plaintiff if this does not appear on the pleadings, but comes out in evidence at the trial(o). It has been suggested that the Court might in a proper case, on the application Edition: current; Page: [187] of the Crown or otherwise, exercise its summary jurisdiction to stay proceedings in the civil action(p): but there is no example of this. Whatever may be the true nature and incidents of the duty of the wronged party to prosecute, it is a personal one and does not extend to a trustee in bankruptcy(q), nor, it is conceived, to executors in the cases where executors can sue. On the whole there is apparent in quarters of high authority a strong though not unanimous disposition to discredit the rule as a mere cantilena of text-writers founded on ambiguous or misapprehended cases, or on dicta which themselves were open to the same objections(r). At the same time it is certain that the judges consulted by the House of Lords in Marsh v. Keating(s) thought such a rule existed, though it was not applicable to the case in hand; and that in Ex parte Elliott(t) it was effectually applied to exclude a proof in bankruptcy.
Locality of wrongful act as affecting remedy in English court. Lastly we have to see under what conditions there may be a remedy in an English court for an act in the nature of a tort committed in a place outside the territorial jurisdiction Edition: current; Page: [188] of the court. It is needless to state formally that no action can be maintained in respect of an act which is justified or excused according to both English and local law. Besides this obvious case, the following states of things are possible.
Acts not wrongful by English law. 1. The act may be such that, although it may be wrongful by the local law, it would not be a wrong if done in England. In this case no action lies in an English court. The court will not carry respect for a foreign municipal law so far as to "give a remedy in the shape of damages in respect of an act which, according to its own principles, imposes no liability on the person from whom the damages are claimed"(u).
Acts justified by local law. 2. The act, though in itself it would be a trespass by the law of England, may be justified or excused by the local law. Here also there is no remedy in an English court(x). And it makes no difference whether the act was from the first justifiable by the local law, or, not being at the time justifiable, was afterwards ratified or excused by a declaration of indemnity proceeding from the local sovereign power. In the well-known case of Phillips v. Eyre(y), where the defendant was governor of Jamaica at the time of the trespasses complained of, an Act of indemnity subsequently passed by the colonial Legislature was held effectual to prevent the defendant from being liable in an action for assault and false imprisonment brought in England. But nothing less than justification by the local Edition: current; Page: [189] law will do. Conditions of the lex fori suspending or delaying the remedy in the local courts will not be a bar to the remedy in an English court in an otherwise proper case(z). And our courts would possibly make an exception to the rule if it appeared that by the local law there was no remedy at all for a manifest wrong, such as assault and battery committed without any special justification or excuse(a).
Act wrongful by both laws. 3. The act may be wrongful by both the law of England and the law of the place where it was done. In such a case an action lies in England, without regard to the nationality of the parties(b), provided the cause of action is not of a purely local kind, such as trespass to land. This last qualification was formerly enforced by the technical rules of venue, with the distinction thereby made between local and transitory actions: but the grounds were substantial and not technical, and when the Judicature Acts abolished the technical forms(c) they did not extend the jurisdiction of the Court to cases in which it had never been exercised. The result of the contrary doctrine would be that the most complicated questions of local law might have to be dealt with here as matters of fact, not incidentally (as must now and then unavoidably happen in various cases), but as the very substance of the issues; besides which, the Court would have no means of ensuring or supervising the execution of its judgments.
Judgment of Ex. Ch. in Phillips v. Eyre. We have stated the law for convenience in a series of distinct propositions. But, considering the importance of Edition: current; Page: [190] the subject, it seems desirable also to reproduce the continuous view of it given in the judgment of the Exchequer Chamber delivered by Willes J. in Phillips v. Eyre:—
"Our courts are said to be more open to admit actions founded upon foreign transactions than those of any other European country; but there are restrictions in respect of locality which exclude some foreign causes of action altogether, namely, those which would be local if they arose in England, such as trespass to land: Doulson v. Matthews(d); and even with respect to those not falling within that description our courts do not undertake universal jurisdiction. As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England: therefore, in The Halley(e) the Judicial Committee pronounced against a suit in the Admiralty founded upon a liability by the law of Belgium for collision caused by the act of a pilot whom the shipowner was compelled by that law to employ, and for whom, therefore, as not being his agent, he was not responsible by English law. Secondly, the act must not have been justifiable by the law of the place where it was done. Therefore in Blad's Case(f), and Blad v. Bamfield(g), Lord Nottingham held that a seizure in Iceland, authorized by the Danish Government and valid by the law of the place, could not be questioned by civil action in England, although the plaintiff, an Englishman, insisted that the seizure was in violation of a treaty between this country and Denmark— Edition: current; Page: [191] a matter proper for remonstrance, not litigation. And in Dobree v. Napier(h), Admiral Napier having, when in the service of the Queen of Portugal, captured in Portuguese water an English ship breaking blockade, was held by the Court of Common Pleas to be justified by the law of Portugal and of nations, though his serving under a foreign prince was contrary to English law, and subjected him to penalties under the Foreign Enlistment Act. And in Reg. v. Lesley(i), an imprisonment in Chili on board a British ship, lawful there, was held by Erle C. J., and the Court for Crown Cases Reserved, to be no ground for an indictment here, there being no independent law of this country making the act wrongful or criminal. As to foreign laws affecting the liability of parties in respect of bygone transactions, the law is clear that, if the foreign law touches only the remedy or procedure for enforcing the obligation, as in the case of an ordinary statute of limitations, such law is no bar to an action in this country; but if the foreign law extinguishes the right it is a bar in this country equally as if the extinguishment had been by a release of the party, or an act of our own Legislature. This distinction is well illustrated on the one hand by Huber v. Steiner(k), where the French law of five years' prescription was held by the Court of Common Pleas to be no answer in this country to an action upon a French promissory note, because that law dealt only with procedure, and the time and manner of suit (tempus et modum actionis instituendae), and did not affect to destroy the obligation of the contract (valorem contractus); and on the other hand by Potter v. Brown(l), where the drawer of a bill at Baltimore upon England was held discharged from Edition: current; Page: [192] his liability for the non-acceptance of the bill here by a certificate in bankruptcy, under the law of the United States of America, the Court of Queen's Bench adopting the general rule laid down by Lord Mansfield in Ballantine v. Golding(m), and ever since recognized, that, 'what is a discharge of a debt in the country where it is contracted is a discharge of it everywhere.' So that where an obligation by contract to pay a debt or damages is discharged and avoided by the law of the place where it was made, the accessory right of action in every court open to the creditor unquestionably falls to the ground. And by strict parity of reasoning, where an obligation ex delicto to pay damages is discharged and avoided by the law of the country where it was made, the accessory right of action is in like manner discharged and avoided. Cases may possibly arise in which distinct and independent rights or liabilities or defences are created by positive and specific laws of this country in respect of foreign transactions; but there is no such law (unless it be the Governors Act already discussed and disposed of) applicable to the present case."
Limitation of actions. The times in which actions of tort must be brought are fixed by the Statute of Limitation of James I. (21 Jac. 1, c. 16) as modified by later enactments(n). No general principle is laid down, but actionable wrongs are in effect divided into three classes, with a different term of limitation for each. These terms, and the causes of action to which they apply, are as follows, the result being stated, without regard to the actual words of the statute, according to the modern construction and practice:—
Six years.
Trespass to land and goods, conversion, and all other Edition: current; Page: [193] common law wrongs (including libel) except slander by words actionable per se(o) and injuries to the person.
Four years.
Injuries to the person (including imprisonment).
Two years.
Slander by words actionable per se.
Suspension of the statute by disabilities. Persons who at the time of their acquiring a cause of action are infants, or lunatics(p), have the period of limitation reckoned against them only from the time of the disability ceasing; and if a defendant is beyond seas at the time of the right of action arising, the time runs against the plaintiff only from his return. No part of the United Kingdom or of the Channel Islands is deemed to be beyond seas for this purpose(p). Married women are no longer within this provision since the Married Women's Property Act of 1882(q). If one cause of disability supervenes on another unexpired one (as formerly where a woman married under age), the period of limitation probably runs only from the expiration of the latter disability(r).
From what time action runs. Where damage is the gist of the action, the time runs only from the actual happening of the damage(s).Edition: current; Page: [194]
In trover the statute runs from demand on and refusal by the defendant, whether the defendant were the first converter of the plaintiff's goods or not(u).
Protection of public officers. Justices of the peace(x) and constables(y) are protected by general enactments that actions against them for any thing done in the execution of their office must be brought within six months of the act complained of; and a similar rule has now been made as to all acts done in execution or intended execution of statutory and other public duties or authorities(z).
The enforcement of statutory duties is often made subject by the same Acts which create the duties to a short period of limitation. For the most part these provisions do not really belong to our subject, but to various particular branches of public law. The existence of such provisions in Lord Campbell's Act and the Employers' Liability Act has already been noticed.
Exception of concealed fraud. The operation of the Statute of Limitation is further subject to the exception of concealed fraud, derived from the doctrine and practice of the Court of Chancery, which, whether it thought itself bound by the terms of the statute, or only acted in analogy to it(a), considerably modified its literal application. Where a wrong-doer fraudulently conceals his own wrong, the period of limitation runs only from the time when the plaintiff discovers the truth, or Edition: current; Page: [195] with reasonable diligence would discover it. Such is now the rule of the Supreme Court in every branch of it and in all causes(b).
A plaintiff may not set up by way of amendment claims in respect of causes of action which are barred by the statute at the date of amendment, though they were not so at the date of the original writ(c).
It has often been remarked that, as matter of policy, the periods of limitation fixed by the statute of James are unreasonably long for modern usage; but modern legislation has done nothing beyond removing some of the privileged disabilities, and attaching special short periods of limitation to some special statutory rights. The Statutes of Limitation ought to be systematically revised as a whole.
Conclusion of General Part. We have now reviewed the general principles which are common to the whole law of Torts as to liability, as to exceptions from liability, and as to remedies. In the following part of this work we have to do with the several distinct kinds of actionable wrongs, and the law peculiarly applicable to each of them.
Preliminary. Security for the person is among the first conditions of civilized life. The law therefore protects us, not only against actual hurt and violence, but against every kind of bodily interference and restraint not justified or excused by allowed cause, and against the present apprehension of any of these things. The application of unlawful force to another constitutes the wrong called battery: an action which puts another in instant fear of unlawful force, though no force be actually applied, is the wrong called assault. These wrongs are likewise indictable offences, and under modern statutes can be dealt with by magistrates in the way of summary jurisdiction, which is the kind of redress most in use. Most of the learning of assault and battery, considered as civil injuries, turns on the determination of the occasions and purposes by which the use of force is justified. The elementary notions are so well settled as to require little illustration.
What shall be said a battery. "The least touching of another in anger is a battery"(a); Edition: current; Page: [197] "for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner"(b). It is immaterial not only whether the force applied be sufficient in degree to cause actual hurt, but whether it be of such a kind as is likely to cause it. Some interferences with the person which cause no bodily harm are beyond comparison more insulting and annoying than others which do cause it. Spitting in a man's face is more offensive than a blow, and is as much a battery in law(c). Again, it does not matter whether the force used is applied directly or indirectly, to the human body itself or to anything in contact with it; nor whether with the hand or anything held in it, or with a missile(d).
What an assault. Battery includes assault, and though assault strictly means an inchoate battery, the word is in modern usage constantly made to include battery. No reason appears for maintaining the distinction of terms in our modern practice: and in the draft Criminal Code of 1879 "assault" is deliberately used in the larger popular sense. "An assault" (so runs the proposed definition) "is the act of intentionally applying force to the person of another directly or indirectly, or attempting or threatening by any act or gesture to apply such force to the person of another, if the person making the threat causes the other Edition: current; Page: [198] to believe(e) upon reasonable grounds that he has present ability to effect his purpose"(f).
Examples of acts which amount to assaulting a man are the following: "Striking at him with or without a weapon, or presenting a gun at him at a distance to which the gun will carry, or pointing a pitchfork at him, standing within the reach of it, or holding up one's fist at him, or drawing a sword and waving it in a menacing manner"(g). The essence of the wrong is putting a man in present fear of violence, so that any act fitted to have that effect on a reasonable man may be an assault, though there is no real present ability to do the harm threatened. Thus it may be an assault to present an unloaded fire-arm(h), or even, it is apprehended, anything that looks like a fire-arm. So if a man is advancing upon another with apparent intent to strike him, and is stopped by a third person before he is actually within striking distance, he has committed an assault(i). Acts capable in themselves of being an assault Edition: current; Page: [199] may on the other hand be explained or qualified by words or circumstances contradicting what might otherwise be inferred from them. A man put his hand on his sword and said, "If it were not assize-time, I would not take such language from you;" this was no assault, because the words excluded an intention of actually striking(k).
Excusable acts. Hostile or unlawful intention is necessary to constitute an indictable assault; and such touching, pushing, or the like as belongs to the ordinary conduct of life, and is free from the use of unnecessary force, is neither an offence nor wrong. "If two or more meet in a narrow passage, and without any violence or design of harm the one touches the other gentle, it will be no battery"(l). The same rule holds of a crowd of people going into a theatre or the like(m). Such accidents are treated as inevitable, and create no right of action even for nominal damages. In other cases an intentional touching is justified by the common usage of civil intercourse, as when a man gently lays his hand on another to attract attention. But the use of needless force for this purpose, though it does not seem to entail criminal liability where no actual hurt is done, probably makes the act civilly wrongful(n).
Mere passive obstruction is not an assault, as where a man by standing in a doorway prevents another from coming in(o).Edition: current; Page: [200]
Words cannot of themselves amount to an assault under any circumstances, though there is evidence of an earlier contrary opinion:
There is little direct authority on the point, but no doubt is possible as to the modern law.
Consent, or in the common phrase "leave and licence," will justify many acts which would otherwise be assaults(q), striking in sport for example; or even, if coupled with reasonable cause, wounding and other acts of a dangerous kind, as in the practice of surgery. But consent will not make acts lawful which are a breach of the peace, or otherwise criminal in themselves, or unwarrantably dangerous. To the authorities already cited(r) under the head of General Exceptions we may add Hawkins' paragraph on the matter.
"It seems to be the better opinion that a man is in no danger of such a forfeiture [of recognizances for keeping the peace] from any hurt done to another by playing at cudgels, or such like sport, by consent, because the intent of the parties seems no way unlawful, but rather commendable, Edition: current; Page: [201] and tending mutually to promote activity and courage. Yet it is said that he who wounds another in fighting with naked swords does in strictness forfeit such a recognizance, because no consent can make so dangerous a diversion lawful"(s).
It has been repeatedly held in criminal cases of assault that an unintelligent assent, or a consent obtained by fraud, is of no effect(t). The same principles would no doubt be applied by courts of civil jurisdiction if necessary.
Self-defence. When one is wrongfully assaulted it is lawful to repel force by force (as also to use force in the defence of those whom one is bound to protect, or for keeping the peace), provided that no unnecessary violence be used. How much force, and of what kind, it is reasonable and proper to use in the circumstances must always be a question of fact, and as it is incapable of being concluded beforehand by authority, so we do not find any decisions which attempt a definition. We must be content to say that the resistance must "not exceed the bounds of mere defence and prevention"(u), or that the force used in defence must be not more than "commensurate" with that which provoked it(v). It is obvious, however, that the matter is of much graver importance in criminal than in civil law(w).Edition: current; Page: [202]
Menace distinguished from assault. Menace without assault is in some cases actionable. But this is on the ground of its causing a certain special kind of damage; and then the person menaced need not be the person who suffers damage. In fact the old authorities are all, or nearly all, on intimidation of a man's servants or tenants whereby he loses their service or dues. Therefore, though under the old forms of action this wrong was of the same genus with assault and battery, we shall find it more convenient to consider it under another head. Verbal threats of personal violence are not, as such, a ground of civil action at all. If a man is thereby put in reasonable bodily fear he has his remedy, but not a civil one, namely by security of the peace.
Summary proceedings when a bar to civil action. Where an assault is complained of before justices under 24 & 25 Vict. c. 100, and the complaint has been dismissed (after an actual hearing on the merits)(x), either for want of proof, or on the ground that the assault or battery was "justified or so trifling as not to merit any punishment," or the defendant has been convicted and paid the fine or suffered the sentence, as the case may be, no further proceedings either civil or criminal can be taken in respect of the same assault(y).
False imprisonment. Freedom of the person includes immunity not only from the actual application of force, but from every kind of detention and restraint not authorized by law. The infliction Edition: current; Page: [203] of such restraint is the wrong of false imprisonment; which, though generally coupled with assault, is nevertheless a distinct wrong. Laying on of hands or other actual constraint of the body is not a necessary element; and, if "stone walls do not a prison make" for the hero or the poet, the law none the less takes notice that there may be an effectual imprisonment without walls of any kind. "Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets"(z). And when a man is lawfully in a house, it is imprisonment to prevent him from leaving the room in which he is(a). The detainer, however, must be such as to limit the party's freedom of motion in all directions. (It is not an imprisonment to obstruct a man's passage in one direction only. "A prison may have its boundary large or narrow, invisible or tangible, actual or real, or indeed in conception only; it may in itself be moveable or fixed; but a boundary it must have, and from that boundary the party imprisoned must be prevented from escaping; he must be prevented from leaving that place within the limit of which the party imprisoned could be confined." Otherwise every obstruction of the exercise of a right of way may be treated as an imprisonment(b). A man is not imprisoned who has an escape open to him(c); that is, we apprehend, a means of escape which a man of ordinary ability can use without peril of Edition: current; Page: [204] life or limb. The verge of a cliff, or the foot of an apparently impracticable wall of rock, would in law be a sufficient boundary, though peradventure not sufficient in fact to restrain an expert diver or mountaineer. So much as to what amounts to an imprisonment.
Justification of arrest and imprisonment. When an action for false imprisonment is brought and defended, the real question in dispute is mostly, though not always, whether the imprisonment was justified. One could not account for all possible justifications except by a full enumeration of all the causes for which one man may lawfully put constraint on the person of another: an undertaking not within our purpose in this work. We have considered, under the head of General Exceptions(d), the principles on which persons acting in the exercise of special duties and authorities are entitled to absolute or qualified immunity. With regard to the lawfulness of arrest and imprisonment in particular, there are divers and somewhat minute distinctions between the powers of a peace-officer and those of a private citizen(e): of which the chief is that an officer may without a warrant arrest on reasonable suspicion of felony, even though a felony has not in fact been committed, whereas a private person so arresting, or causing to be arrested, an alleged offender, must show not only that he had reasonable grounds of suspicion but that a felony had actually been committed(f). The modern policeman is a statutory constable having all the powers which a constable has by the common law(g), and special Edition: current; Page: [205] statutory powers for dealing with various particular offences(h).
Who is answerable. Every one is answerable for specifically directing the arrest or imprisonment of another, as for any other act that he specifically commands or ratifies; and a superior officer who finds a person taken into custody by a constable under his orders, and then continues the custody, is liable to an action if the original arrest was unlawful(i). Nor does it matter whether he acts in his own interest or another's(j). But one is not answerable for acts done upon his information or suggestion by an officer of the law, if they are done not as merely ministerial acts, but in the exercise of the officer's proper authority or discretion. Rather troublesome doubts may arise in particular cases as to the quality of the act complained of, whether in this sense discretionary, or ministerial only. The distinction between a servant and an "independent contractor"(k) with regard to the employer's responsibility is in some measure analogous. A party who sets the law in motion without making its act his own is not necessarily free from liability. He may be liable for malicious prosecution (of which hereafter)(l); but he cannot be sued for false imprisonment, or in a court which has not jurisdiction over cases of malicious prosecution. "The distinction between false imprisonment and malicious prosecution is well illustrated by Edition: current; Page: [206] the case where, parties being before a magistrate, one makes a charge against another, whereupon the magistrate orders the person charged to be taken into custody and detained until the matter can be investigated. The party making the charge is not liable to an action for false imprisonment, because he does not set a ministerial officer in motion, but a judicial officer. The opinion and the judgment of a judicial officer are interposed between the charge and the imprisonment"(m). Where an officer has taken a supposed offender into custody of his own motion, a person who at his request signs the charge-sheet does not thereby make the act his own(n), any more than one who certifies work done under a contract thereby makes the contractor his servant. But where an officer consents to take a person into custody only upon a charge being distinctly made by the complainant, and the charge-sheet signed by him, there the person signing the charge-sheet must answer for the imprisonment as well as the officer(o).
Again, where a man is given into custody on a mistaken charge, and then brought before a magistrate who remands him, damages can be given against the prosecutor in an action for false imprisonment only for the trespass Edition: current; Page: [207] in arresting, not for the remand, which is the act of the magistrate(p).
Reasonable and probable cause. What is reasonable cause of suspicion to justify arrest may be said, paradoxical as the statement looks, to be neither a question of law nor of fact, at any rate in the common sense of the terms. Not of fact, because it is for the judge and not for the jury(q); not of law, because "no definite rule can be laid down for the exercise of the judge's judgment"(r). It is a matter of judicial discretion such as is familiar enough in the classes of cases which are disposed of by a judge sitting alone; but this sort of discretion does not find a natural place in a system which assigns the decision of facts to the jury and the determination of the law to the judge. The anomalous character of the rule has been more than once pointed out and regretted by the highest judicial authority(s). The truth seems to be that the question was formerly held to be one of law, and has for some time been tending to become one of fact, but the change has never been formally recognized. The only thing which can be certainly affirmed in general terms about the meaning of "reasonable cause" in this connexion is that on the one hand a belief honestly entertained is not of itself enough(t); on the other hand, a man is not bound to wait until he is in possession of such evidence Edition: current; Page: [208] as would be admissible and sufficient for prosecuting the offence to conviction, or even of the best evidence which he might obtain by further inquiry. "It does not follow that because it would be very reasonable to make further inquiry, it is not reasonable to act without doing so"(u). It is obvious, also, that the existence or non-existence of reasonable cause must be judged, not by the event, but by the party's means of knowledge at the time.
Although the judge ought not to leave the whole question of reasonable cause to the jury, there seems to be no objection to his asking the jury, as separate questions, whether the defendant acted on an honest belief, and whether he used reasonable care to inform himself of the facts(x).
Protection of personal relations. Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving a husband of the society of his wife, a parent of the companionship and confidence of his children, is not less a personal injury, though a less tangible one, than beating or imprisonment. The same may to some extent be said of the relation of master and servant, which in modern law is created by contract, but is still regarded for some purposes as belonging to the permanent organism of the family, and having the nature of status. It seems natural enough that an action should lie at the suit of the head of a household for enticing away a person who is under his lawful authority, be it wife, child, or servant; there may be difficulty in fixing the boundary where the sphere of Edition: current; Page: [209] domestic relations ends and that of pure contract begins, but that is a difficulty of degree. That the same rule should extend to any wrong done to a wife, child, or servant, and followed as a proximate consequence by loss of their society or service, is equally to be expected. Then, if seduction in its ordinary sense of physical and moral corruption is part of the wrong-doer's conduct, it is quite in accordance with principles admitted in other parts of the law that this should be a recognized ground for awarding exemplary damages. It is equally plain that on general principle a daughter or servant can herself have no civil remedy against the seducer, though the parent or master may; no civil remedy, we say, for other remedies have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency; the courts, which have the power and the duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step.
Historical accidents of the common law herein. There seems, in short, no reason why this class of wrongs should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service; with the result that in the class of cases most Edition: current; Page: [210] prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive "loss of service"(y).
Trespass for taking away wife, &c. and per quod servitium amisit. The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also(z). An action of trespass also lay for wrongs done to the plaintiff's wife or servant (not to a child as such), whereby he lost the society of the former or the services of the latter. The language of pleading was per quod consortium, or servitium amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are "diversis respectibus"(a). "If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action; and the reason of this difference is that the master has not any damage by the personal beating of his servant, but by reason of a per quod, viz., per quod servitium, &c. amisit; so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of his service, is the cause of his action; for be the battery greater or less, if the master Edition: current; Page: [211] doth not lose the service of his servant, he shall not have an action"(b). The same rule applies to the beating or maltreatment of a man's wife, provided it be "very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife"(c).
"Criminal conversation." Against an adulterer the husband had an action at common law, commonly known as an action of criminal conversation. In form it was generally trespass vi et armis, on the theory that "a wife is not, as regards her husband, a free agent or separate person"(d), and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the Establishment of the Divorce Court in 1857, but damages can be claimed on the same principles in proceedings under the jurisdiction then instituted(e).
In practice these actions were always or almost always instituted with a view to obtaining a divorce by private Act of Parliament; the rules of the House of Lords (in which alone such Bills were brought in) requiring the applicant to have obtained both the verdict of a jury in an action, and a sentence of separation a mensa et toro in the Ecclesiastical Court.Edition: current; Page: [212]
Enticing away servants. An action also lay for enticing away a servant (that is, procuring him or her to depart voluntarily from the master's service), and also for knowingly harbouring a servant during breach of service; whether by the common law, or only after and by virtue of the Statute of Labourers(f), is doubtful. Quite modern examples are not wanting(g).
Much later the experiment was tried with success of a husband bringing a like action "against such as persuade and entice the wife to live separate from him without a sufficient cause"(h).
Still later the action for enticing away a servant per quod servitium amisit, was turned to the purpose for which alone it may now be said to survive, that of punishing seducers; for the latitude allowed in estimating damages makes the proceeding in substance almost a penal one.Edition: current; Page: [213]
Actions for seduction in modern practice: proof or presumption of service. In this kind of action it is not necessary to prove the existence of a binding contract of service between the plaintiff and the person seduced or enticed away. The presence or absence of seduction in the common sense (whether the defendant "debauched the plaintiff's daughter," in the forensic phrase) makes no difference in this respect; it is not a necessary part of the cause of action, but only a circumstance of aggravation(i). Whether that element be present or absent, proof of a de facto relation of service is enough; and any fraud whereby the servant is induced to absent himself or herself affords a ground of action, "when once the relation of master and servant at the time of the acts complained of is established"(k).
This applies even to an actual contract of hiring made by the defendant with a female servant whom he has seduced, if it is found as a fact that the hiring was a merely colourable one, undertaken with a view to the seduction which followed(l). And a de facto service is not the less recognized because a third party may have a paramount claim: a married woman living apart from her husband in her father's house may be her father's servant, even though that relation might be determined at the will of the husband(m). Some evidence of such a relation there must be, but very little will serve. A grown-up daughter keeping a separate establishment cannot be deemed her Edition: current; Page: [214] father's servant(n); nor can a daughter, whether of full age or not, who at the time of the seduction is actually another person's servant, so that no part of her services is at her parents' disposal(o). On the other hand, the fact of a child living with a parent, or any other person in loco parentis, as a member of the family of which that person is the head, is deemed enough to support the inference "that the relation of master and servant, determinable at the will of either party, exists between them"(p). And a daughter under age, returning home from service with another person which has been determined, may be deemed to have re-entered the service of her father(q). "The right to the service is sufficient"(r).
Partial attendance in the parents' house is enough to constitute service, as where a daughter employed elsewhere in the daytime is without consulting her employer free to assist, and does assist, in the household when she comes home in the evening(s).
Damages. Some loss of service, or possibility of service, must be shown as consequent on the seduction, since that is, in theory, the ground of action(t); but when that condition Edition: current; Page: [215] is once satisfied, the damages that may be given are by no means limited to an amount commensurate with the actual loss of service proved or inferred. The awarding of exemplary damages is indeed rather encouraged than otherwise(u). It is immaterial whether the plaintiff be a parent or kinsman, or a stranger in blood who has adopted the person seduced(x).
Services of young child. On the same principle or fiction of law a parent can sue in his own name for any injury done to a child living under his care and control, provided the child is old enough to be capable of rendering service; otherwise not, for "the gist of the action depends upon the capacity of the child to perform acts of service"(y).
Capricious operation of the law. The capricious working of the action for seduction in modern practice has often been the subject of censure. Thus, Serjeant Manning wrote more than forty years ago: "the quasi fiction of servitium amisit affords protection to the rich man whose daughter occasionally makes his tea, but leaves without redress the poor man whose child is sent unprotected to earn her bread amongst strangers"(z). All devices for obtaining what is virtually a new remedy by straining old forms and ideas beyond their original intention are liable to this kind of inconvenience. It has been truly said(a) that the enforcement of a substantially just claim "ought not to depend upon a mere fiction over Edition: current; Page: [216] which the courts possess no control." We have already pointed out the bolder course which might have been taken without doing violence to any legal principle. Now it is too late to go back upon the cases, and legislation would also be difficult and troublesome, not so much from the nature of the subject in itself as from the variety of irrelevant matters that would probably be imported into any discussion of it at large.
Constructive service in early cases. It would be merely curious, and hardly profitable in any just proportion to the labour, to inquire how far the fiction of constructive service is borne out by the old law of the action for beating or carrying away a servant. Early in the 15th century we find a dictum that if a man serves me, and stays with me at his own will, I shall have an action for beating him, on the ground of the loss of his service(b): but this is reported with a quaere. A generation later(c) we find Newton C. J. saying that a relation of service between father and son cannot be presumed: "for he may serve where it pleaseth him, and I cannot constrain him to serve without his good will:" this must apply only to a son of full age, but as to that case Newton's opinion is express that some positive evidence of service, beyond living with the parent as a member of the household, is required to support an action. Unless the case of a daughter can be distinguished, the modern authorities do not agree with this. But the same Year Book bears them out (as noted by Willes J.)(d) in holding that a binding contract of service need not be shown. Indeed, it was better merely to allege the service as a fact (in servitio suo existentem cepit), for an action under the Statute of Edition: current; Page: [217] Labourers would not lie where there was a special contract varying from the retainer contemplated by the statute, and amounting to matter of covenant(e).
Intimidation of servants and tenants. A similar cause of action, but not quite the same, was recognized by the medieval common law where a man's servants or tenants at will(f) were compelled by force or menace to depart from their service or tenure. "There is another writ of trespass," writes Fitzherbert, "against those who lie near the plaintiff's house, and will not suffer his servants to go into the house, nor the servants who are in the house to come out thereof"(g). Examples of this kind are not uncommon down to the sixteenth century or even later; we find in the pleadings considerable variety of circumstance, which may be taken as expansion or specification of the alia enormia regularly mentioned in the conclusion of the writ(h).Edition: current; Page: [218]
In the early years of the eighteenth century the genius of Holt found the way to use this, together with other special classes of authorities, as a foundation for the broader principle that "he that hinders another in his trade or livelihood is liable to an action for so hindering him"(i), subject, of course, to the exception that no wrong is done by pursuing one's own trade or livelihood in the accustomed manner though loss to another may be the result(k) and even the intended result(l). Historically both this principle and that of Lumley v. Gye(m) are developments of the old "per quod servitium amisit"; but in the modern law they depend on different and much wider reasons, and raise questions which are not technical but fundamental. We shall therefore deal with them not here but under another head.
Civil and criminal jurisdiction distinguished. Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, as endangering public order, or being offensive to public decency or morality. We are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action: and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difficulty(a).
Slander and libel distinguished. The wrong of defamation may be committed either by way of speech, or by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, engraving, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter(aa). Using Edition: current; Page: [220] the terms "written" and "spoken" in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only(b). Written utterances are, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds.
No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers' excellent and exhaustive monograph(c). We shall, as a rule, confine our authorities and illustrations to recent cases.Edition: current; Page: [221]
When slander is actionable. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases:
Where the words impute a criminal offence.
Where they impute having a contagious disease which would cause the person having it to be excluded from society.
Where they convey a charge of unfitness, dishonesty, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling.
Spoken words which afford a cause of action without proof of special damage are said to be actionable per se: the theory being that their tendency to injure the plaintiff's reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in our modern books mere afterthoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it(d).
Meaning of "prima facie libellous." No such distinctions exist in the case of libel: it is enough to make a written statement primâ facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning whom it Edition: current; Page: [222] is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrongdoer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse.
Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial(e); the rules themselves are well settled in modern practice.
Special damage. Where "special damage" is the ground of action, we have to do with principles already considered in a former chapter(f): namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be "the legal and natural consequence of the words spoken" in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.'s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C.(g). But this doctrine is contrary to principle: the question is not whether C.'s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved Edition: current; Page: [223] by so much and such weighty authority that we may say it is not law(h). There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself(i). This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural consequence of his words, otherwise not.
Repetition of spoken words. It is settled however that no cause of action is afforded by special damage arising merely from the voluntary repetition of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote(j). But if the first speaker authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, official, or moral duty ought to repeat it, he will be liable for the consequences(k).
Special damage involves a definite temporal loss. Losing the general good opinion of one's neighbours, consortium vicinorum as the phrase goes, is not of itself special damage. A loss of some material advantage must be shown. Defamatory words not actionable per se were spoken of a member of a religious society who by reason thereof was excluded from membership: there was not any allegation or proof that such membership carried with Edition: current; Page: [224] it as of right any definite temporal advantage. It was held that no loss appeared beyond that of consortium vicinorum, and therefore there was no ground of action(l). Yet the loss of consortium as between husband and wife is a special damage of which the law will take notice(m), and so is the loss of the voluntary hospitality of friends, this last on the ground that a dinner in a friend's house and at his expense is a thing of some temporal value(n). Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not: so that an action will not lie for speaking disparaging words of a candidate for a club, by means whereof the majority of the club decline to alter the rules in a manner which would be favourable to his election. "The risk of temporal loss is not the same as temporal loss"(o). Trouble of mind caused by defamatory words is not sufficient special damage, and illness consequent upon such trouble is too remote. "Bodily pain or suffering cannot be said to be the natural result in all persons"(p).
Imputations of criminal offence. As to the several classes of spoken words that may be actionable without special damage: words sued on as imputing crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal penalty (not merely to a fine in the first instance, with possible imprisonment in default of payment)(q). The Edition: current; Page: [225] offence need not be specified with legal precision, indeed it need not be specified at all if the words impute felony generally. But if particulars are given they must be legally consistent with the offence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal property is vested in him ex officio(r); it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as "thief," inasmuch as a layman who enters on details will probably make some impossible combination.
It is not a libel as against a corporation (though it may be as against individual members or officers) to charge the body as a whole with an offence which a corporate body cannot commit(s).
Other charges of mere immorality not actionable. False accusation of immorality or disreputable conduct not punishable by a temporal court is at common law not actionable per se, however gross. The Slander of Women Act, 1891 (54 & 55 Vict. c. 51), has abolished the need of showing special damage in the case of "words . . . which impute unchastity or adultery to any woman or girl." The courts might without violence have presumed Edition: current; Page: [226] that a man's reputation for courage,Slander of Women Act. honour, and truthfulness, a woman's for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise(t), and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unchastity, which yet may sometimes be quite as vexatious, and more mischievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established(u).
A person who has committed a felony and been convicted may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law(v).
Imputations of contagious disease. Little need be said concerning imputations of contagious disease unfitting a person for society: that is, in the modern law, venereal disease(x). The only notable point is that "charging another with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails; for such a charge cannot produce the effect which makes it the subject of an Edition: current; Page: [227] action, namely, his being avoided by society"(y). There does not seem to be more than one reported English case of the kind within the present century(z).
Evil-speaking of a man in the way of his business. Concerning words spoken of a man to his disparagement in his office, profession, or other business: they are actionable on the following conditions:—They must be spoken of him in relation to or "in the way of" a position which he holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or unfitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party's employment or business. To call a stonemason a "ringleader of the nine hours system" is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work; such words therefore, in default of anything showing more distinctly how they were connected with the plaintiff's occupation, were held not to be actionable(a). Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as naturally tending, if believed, to the party's deprivation or other ecclesiastical censure in the one case, and dismissal in the other. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the Edition: current; Page: [228] peace, for he need not be learned. It is actionable to charge a solicitor with cheating his clients, but not with cheating other people on occasions unconnected with his business(b). But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with anything for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct(c).
It makes no difference whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the College of Physicians; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal(d). Nor does it matter what the nature of the employment is, provided it be lawful(e); or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes(f). As regards the reputation of traders the law has taken a broader view than elsewhere. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy Edition: current; Page: [229] Act(g). A trading corporation may be defamed in relation to the conduct of its business(h).
Words indirectly causing damage to a man in his business. There are cases, though not common in our books, in which a man suffers loss in his business as the intended or "natural and probable result" of words spoken in relation to that business, but not against the man's own character or conduct: as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired: or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist(i). In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) "for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title." General loss of business is sufficient "special damage" to be a cause of action in such a case(k).
Rules as to defamation generally. We now pass to the general law of defamation, which applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind may affect the measure of Edition: current; Page: [230] damages for written defamation, though not the right of action itself.
"Implied malice." It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added "maliciously" to "falsely." Whatever may have been the origin or the original meaning of this language(l), malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse(m); and to say that the law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of his act(n). "Express malice" means something different, of which hereafter.
What is publication. Evil-speaking, of whatever kind, is not actionable if communicated only to the person spoken of. The cause of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person; and this necessary element of the wrongful act is technically called publication. It need not amount to anything like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk(o), or a manuscript through those of a compositor in a printing-office(p), or a letter dictated by a principal is taken Edition: current; Page: [231] down in shorthand and type-written by a clerk(q), is enough to constitute a publication to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him(q). Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication(r). It appears on the whole that if the defendant has placed defamatory matter within a person's reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person; but if it is proved that the matter did not come to his knowledge, there is no publication(s). A person who is an unconscious instrument in circulating libellous matter, not knowing or having reason to believe that the document he circulates contains any such matter, is free from liability if he proves his ignorance. Such is the case of a newsvendor, as distinguished from the publishers, printers, and owners of newspapers. "A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury"(t). If A is justified in Edition: current; Page: [232] making a disparaging communication about B.'s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is now overruled(u). In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on "publication."
Sending a defamatory letter to a wife about her husband is a publication: "man and wife are in the eye of the law, for many purposes, one person, and for many purposes"—of which this is one—"different persons"(x).
Vicarious publication. On the general principles of liability, a man is deemed to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general "sense and substance" of his request(y).
A person who is generally responsible for publication (such as an editor), and who has admitted publication, is Edition: current; Page: [233] not as a rule bound to disclose the name of the actual author(z).
Construction of words: innuendo. Supposing the authorship of the words complained of to be proved or admitted, many questions may remain.
The construction of words alleged to be libellous (we shall now use this term as equivalent to "defamatory," unless the context requires us to advert to any distinction between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law(a). If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality; but the substance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action(b). Again, explanation Edition: current; Page: [234] is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like(c). This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct further innuendo to show that they bore a special injurious meaning.
Libellous tendency must be probable in law and proved in fact. The actionable or innocent character of words depends not on the intention with which they were published, but on their actual meaning and tendency when published(d). A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an actionable meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact): so that he has to convince both the Court and the jury, and will lose his cause if he fail with either(e). Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind(f). In scholastic language, it is not enough that the terms should be "patient" of the injurious construction; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration(ff).Edition: current; Page: [235]
Repetition and reports may be libellous. The publication is no less the speaker's or writer's own act, and none the less makes him answerable, because he only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them(g); slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth(h). "A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion," and "as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander"(i). Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.
From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A.(k). As to the defendant's belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril.
Exceptions: fair comment. We now have to mention the conditions which exclude, if present, liability for words apparently injurious to reputation.
Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation(l); and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. "The question is not whether the article is privileged, but whether it is a libel"(m). This is settled by the leading case of Campbell v. Spottiswoode(n), confirmed by the Court of Appeal in Merivale v. Carson(o). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of "fair criticism"(p). One test very commonly applicable is the distinction between action and motive; Edition: current; Page: [237] public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. "Where a person has done or published anything which may fairly be said to have invited comment . . . . every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous"(q).
The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed(r). On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all(s). Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying Edition: current; Page: [238] there is no evidence of the comment being otherwise than fair(t).
What is open to comment, matter of law. What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types.
The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs(u), of those in authority, whether imperial or local(x), in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.
Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.
Whether comment is fair, matter of fact (if libellous construction possible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a Edition: current; Page: [239] sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel(y).
In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege.
The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct(z), or purporting to describe the actual contents of the work being criticised(a).
Justification on ground of truth. Defamation is not actionable if the defendant shows that the defamatory matter was true; and if it was so, the purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter "true in substance and in fact" is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not Edition: current; Page: [240] deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded; the cause of action was confessed, but the special matter avoided the plaintiff's right(b). "The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess"(c). This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous.
Must be substantially complete. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not(d). What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact(e).
There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor Edition: current; Page: [241] of a journal a "felon editor" by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a "convicted felon" imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted(f). Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence(g). The limits of the authority which the Court will exercise over juries in handling questions of "mixed fact and law" must be admitted to be hard to define in this and other branches of the law of defamation.
Defendant's belief immaterial. Apparently it would make no difference in law that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to have been true when made: as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court.
Immunity of members of Parliament and judges. In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions. A member of Parliament cannot be lawfully molested outside Edition: current; Page: [242] Parliament by civil action, or otherwise, on account of anything said by him in his place in either House(h). An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice(i). It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith.
Other persons in judicial proceedings. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner's counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be(k); nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case(l). The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. Edition: current; Page: [243] A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice(m). So is a select committee of the House of Commons(n). Statements coming within this rule are said to be "absolutely privileged." The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions.
Reports of officers, &c. As to reports made in the course of naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of "qualified privilege." A majority of the Court of Queen's Bench has held (against a strong dissent), not exactly that they are "absolutely privileged," but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive(o).Edition: current; Page: [244]
Qualified immunity of "privilege l communications." There is an important class of cases in which a middle course is taken between the common rule of unqualified responsibility for one's statements, and the exceptional rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed concerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term "qualified privilege" is often used to mark the requirement of good faith in such cases, in contrast to the cases of "absolute privilege" above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was "absolutely privileged" as to the original utterance of it.
Conditions of the privilege. The conditions of immunity may be thus summed up:—
The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove(p) that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private Edition: current; Page: [245] interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth.
Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, "in excess of the occasion," as we say.
"Express malice." The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law.
The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the "malice in law" which was said to be presumed is not the same as the "express malice" which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting(q).Edition: current; Page: [246]
What are privileged occasions. The occasions giving rise to privileged communications may be in matters of legal or social duty, as where a confidential report is made to an official superior, or in the common case of giving a character to a servant; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good; they may also be matter published in the ordinary sense of the word for purposes of general information.
Moral or social duty. As to occasions of private duty; the result of the authorities appears to be that any state of facts making it right in the interests of society for one person to communicate to another what he believes or has heard regarding any person's conduct or character will constitute a privileged occasion(r).
Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances; but it cannot be prudently assumed that they will be(s). The nature of the interest Edition: current; Page: [247] for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight; how far any of them will outweigh the general presumption against officious interference must always be more or less doubtful(t).
Self-protection. Examples of privileged communications in self-protection, or the protection of a common interest, are a warning given by a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty(u); a letter from a creditor of a firm in liquidation to another of the creditors, conveying information and warning as to the conduct of a member of the debtor firm in its affairs(x). The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party's solicitor in the ordinary course of his duty(y). The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity(z).
Information for public good. Communications addressed in good faith to persons in a public position for the purpose of giving them information to be used for the redress of grievances, the punishment of Edition: current; Page: [248] crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed(a). The communication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a neighbour or parishioner; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter(b).
Fair reports. Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of "qualified privilege" to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as "absolutely privileged," it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended(c). Matter Edition: current; Page: [249] not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest.
Parliamentary papers. By statute (3 & 4 Vict. c. 9, ad 1840) the publication of any reports, papers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice(d).
Parliamentary debates and judicial proceedings. Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. It has long been settled(e) that fair and substantially accurate reports of proceedings in courts of justice are on this footing. As late as 1868 it was decided(f) that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasi-judicial authority for effecting those purposes(g). In the case of judicial proceedings it is immaterial whether they are preliminary or final (provided that they are such Edition: current; Page: [250] as will lead to some final decision)(h) and whether contested or ex parte(h), and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner(i). The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case: but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts(k). The report must not in any case be partial to the extent of misrepresenting the judgment(l). It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied(m); but a correct copy of a document open to the public is not libellous without some such further defamatory addition(n). By statute "a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority" is, "if published contemporaneously with such proceedings," privileged: which seems to mean absolutely privileged, as otherwise the statute would not Edition: current; Page: [251] add to the protection already given by the common law(o). The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication(p), or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff's own evidence will often prove that the facts happened as reported(q).
Volunteered reports. An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action(r).
Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888(s). A public meeting is for this purpose "any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion Edition: current; Page: [252] of any matter of public concern, whether the admission thereto be general or restricted." The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover "the publication of any matter not of public concern, and the publication of which is not for the public benefit," is not protected(t).
Excess of privilege. In the case of privileged communications of a confidential kind, the failure to use ordinary means of ensuring privacy—as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity—will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one(u). But the privilege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example(x). It is now decided that if a communication intended to be made on a privileged occasion is by the sender's ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) Edition: current; Page: [253] delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege(y).
Honest belief is not necessarily reasonable belief. Where the existence of a privileged occasion is established, we have seen that the plaintiff must give affirmative proof of malice, that is, dishonest or reckless ill-will(z), in order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication(a). To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule(b). It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about "implied" and "express" malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far(c). In theory, however, the relation Edition: current; Page: [254] of the Court to the jury is the same as in other questions of "mixed fact and law." Similar difficulties have been felt in the law of Negligence, as we shall see under that head.
Power of jury in assessing damages. In assessing damages the jury "are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial." And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given(d).
Special procedure in actions for newspaper libels. Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into court together with apology in actions for libel in a public print(e).
Limits of interrogatories in action for libel. Where money has been paid into court in an action for libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it(f).
Bad reputation of plaintiff. A plaintiff's general bad repute cannot be pleaded as part of the defence to an action for defamation, for it is not directly material to the issue, but can be proved only in mitigation of damages(g).Edition: current; Page: [255]
Injunctions. We have already seen(h) that an injunction may be granted to restrain the publication of defamatory matter, but, on an interlocutory application, only in a clear case(h), and not where the libel complained of is on the face of it too gross and absurd to do the plaintiff any material harm(i). Cases of this last kind may be more fitly dealt with by criminal proceedings.
Nature of the wrong. In the foregoing chapters we dealt with wrongs affecting the so-called primary rights to security for a man's person, to the enjoyment of the society and obedience of his family, and to his reputation and good name. In these cases, exceptional conditions excepted, the knowledge or state of mind of the person violating the right is not material for determining his legal responsibility. This is so even in the law of defamation, as we have just seen, the artificial use of the word "malice" notwithstanding. We now come to a kind of wrongs in which either a positive wrongful intention, or such ignorance or indifference as amounts to guilty recklessness (in Roman terms either dolus or culpa lata) is a necessary element; so that liability is founded not in an absolute right of the plaintiff, but in the unrighteousness of the defendant.
Concurrent jurisdiction of common law and equity. The wrong called Deceit consists in leading a man into damage by wilfully or recklessly causing him to believe and act on a falsehood. It is a cause of action by the common law (the action being an action on the case founded on the ancient writ of deceit(a), which had a much narrower scope): and it has likewise been dealt with by courts of equity under the general jurisdiction of Edition: current; Page: [257] the Chancery in matters of fraud. The principles worked out in the two jurisdictions are believed to be identical(b), though there may be a theoretical difference as to the character of the remedy, which in the Court of Chancery did not purport to be damages but restitution(c). Since 1875, therefore, we have in this case a real and perfect fusion of rules of common law and equity which formerly were distinct, though parallel and similar.
Difficulties of the subject: complication with contract. The subject has been one of considerable difficulty for several reasons.
First, the law of tort is here much complicated with the law of contract. A false statement may be the inducement to a contract, or may be part of a contract, and in these capacities may give rise to a claim for the rescission of the contract obtained by its means, or for compensation for breach of the contract or of a collateral warranty. A false statement unconnected with any contract may likewise create, by way of estoppel, an obligation analogous to contract. And a statement capable of being regarded in one or more of these ways may at the same time afford a cause of action in tort for deceit. "If, when a man thinks it highly probable that a thing exists, he chooses to say he knows the thing exists, that is really asserting what is false: it is positive fraud. That has been repeatedly laid down. . . . If you choose to say, and say without inquiry, 'I warrant that,' that is a contract. If you say, 'I know it,' and if you say that in order to save the trouble of inquiry, that is a false representation—you are saying what is false to induce them to act upon it"(d).
The grounds and results of these forms of liability are Edition: current; Page: [258] largely similar, but cannot be assumed to be identical. The authorities establishing what is a cause of action for deceit are to a large extent convertible with those which define the right to rescind a contract for fraud or misrepresentation, and the two classes of cases used to be cited without any express discrimination. We shall see however that discrimination is needful.
Questions of fraudulent intent. Secondly, there are difficulties as to the amount of actual fraudulent intention that must be proved against a defendant. A man may be, to all practical intents, deceived and led into loss by relying on words or conduct of another which did not proceed from any set purpose to deceive, but perhaps from an unfounded expectation that what he stated or suggested would be justified by the event. In such a case it seems hard that the party misled should not have a remedy, and yet there is something harsh in saying that the other is guilty of fraud or deceit. An over-sanguine and careless man may do as much harm as a deliberately fraudulent one, but the moral blame is not equal. Again, the jurisdiction of courts of equity in these matters has always been said to be founded on fraud. Equity judges, therefore, were unable to frame a terminology which should clearly distinguish fraud from culpable misrepresentation not amounting to fraud, but having similar consequences in law: and on the contrary they were driven, in order to maintain and extend a righteous and beneficial jurisdiction, to such vague and confusing phrases as "constructive fraud," or "conduct fraudulent in the eyes of this Court." Thus they obtained in a cumbrous fashion the results of the bolder Roman maxim culpa lata dolo acquiparatur. The results were good, but, being so obtained, entailed the cost of much laxity in terms and some laxity of thought. Of late years Edition: current; Page: [259] there has been a reaction against this habit, wholesome in the main, but not free from some danger of excess. "Legal fraud" is an objectionable term, but it does not follow that it has no real meaning(e). One might as well say that the "common counts" for money had and received, and the like, which before the Judicature Acts were annexed to most declarations in contract, disclosed no real cause of action, because the "contract implied in law" which they supposed was not founded on any actual request or promise.
Fraud of agents. Thirdly, special difficulties of the same kind have arisen with regard to false statements made by an agent in the course of his business and for his principal's purposes, but without express authority to make such statements. Under these conditions it has been thought harsh to hold the principal answerable; and there is a further aggravation of difficulty in that class of cases (perhaps the most important) where the principal is a corporation, for a corporation has been supposed not to be capable of a fraudulent intention. We have already touched on this point(f); and the other difficulties appear to have been surmounted, or to be in the way of being surmounted, by our modern authorities.
General conditions of the right of action. Having indicated the kind of problems to be met with, we proceed to the substance of the law.
To create a right of action for deceit there must be a statement made by the defendant, or for which he is Edition: current; Page: [260] answerable as principal, and with regard to that statement all the following conditions must concur:
There is no cause of action without both fraud(j) and actual damage, or the damage is the gist of the action(k).
And according to the general principles of civil liability, the damage must be the natural and probable consequence of the plaintiff's action on the faith of the defendant's statement.
Of these heads in order.
Falsehood in fact. (a) A statement can be untrue in fact only if it purports to state matter of fact. A promise is distinct from a statement of fact, and breach of contract, whether from want of power or of will to perform one's promise, is a different thing from deceit. Again a mere statement of opinion or inference, the facts on which it purports to be founded being notorious or equally known to both parties, is different from a statement importing that certain matters of fact are within the particular knowledge of the speaker. A man cannot hold me to account because he has lost money by following me in an opinion which turned out to be erroneous. In particular cases, however, it may be hard to draw the line between a mere expression of opinion and an assertion of specific fact(l). And a man's intention or purpose at a given time is in itself a matter of fact, and capable (though the proof be seldom easy) of being found as a fact. "The state of a man's mind is as much a fact as the state of his digestion"(m). It is settled that the vendor of goods can rescind the contract on the ground of fraud if he discovers within due time that the buyer intended not to pay the price(n).
When a prospectus is issued to shareholders in a company or the like to invite subscriptions to a loan, a statement of the purposes for which the money is wanted—in Edition: current; Page: [262] other words, of the borrower's intention as to its application—is a material statement of fact, and if untrue may be ground for an action of deceit(n). The same principle would seem to apply to a man's statement of the reasons for his conduct, if intended or calculated to influence the conduct of those with whom he is dealing(o); as if an agent employed to buy falsely names, not merely as the highest price he is willing to give, but as the actual limit of his authority, a sum lower than that which he is really empowered to deal for.
Misrepresentations of law. A representation concerning a man's private rights, though it may involve matters of law, is as a whole deemed to be a statement of fact. Where officers of a company incorporated by a private Act of Parliament accept a bill in the name of the company, this is a representation that they have power so to do under the Act of Parliament, and the existence of non-existence of such power is a matter of fact. "Suppose I were to say I have a private Act of Parliament which gives me power to do so and so. Is not that an assertion that I have such an Act of Parliament? It appears to me to be as much a representation of a matter of fact as if I had said I have a particular bound copy of Johnson's Dictionary"(p). A statement about the existence or actual text of a public Act of Parliament, or a reported decision, would seem to be no less a statement of fact. With regard to statements of Edition: current; Page: [263] matters of general law made only by implication, or statements of pure propositions of the law, the rule may perhaps be this, that in dealings between parties who have equal means of ascertaining the law, the one will not be presumed to rely upon a statement of matter of law made by the other(q). It has never been decided whether proof of such reliance is admissible; it is submitted that if the case arose it could be received, though with caution. Of course a man will not in any event be liable to an action of deceit for misleading another by a statement of law, however erroneous, which at the time he really believed to be correct. That case would fall into the general category of honest though mistaken expressions of opinion. If there be any ground of liability, it is not fraud but negligence, and it must be shown that the duty of giving competent advice had been assumed or accepted.
Falsehood by garbled statements. It remains to be noted that a statement of which every part is literally true may be false as a whole, if by reason of the omission of material facts it is as a whole calculated to mislead a person ignorant of those facts into an inference contrary to the truth(r). "A suppression of the truth may amount to a suggestion of falsehood"(s).
Knowledge or belief of defendant. (b) As to the knowledge and belief of the person making the statement.
He may believe it to be true(t). In that case he incurs Edition: current; Page: [264] no liability, nor is he bound to show that his belief was founded on such grounds as would produce the same belief in a prudent and competent man(u), except so far as the absence of reasonable cause may tend to the inference that there was not any real belief. An honest though dull man cannot be held guilty of fraud any more than of "express malice," although there is a point beyond which courts will not believe in honest stupidity. "If an untrue statement is made," said Lord Chelmsford, "founded upon a belief which is destitute of all reasonable grounds, or which the least inquiry would immediately correct, I do not see that it is not fairly and correctly characterized as misrepresentation and deceit"(x); Lord Cranworth preferred to say that such circumstances might be strong evidence, but only evidence, that the statement was not really believed to be true, and any liability of the parties "would be the consequence not of their having stated as true what they had not reasonable ground to believe to be true, but of their having stated as true what they did not believe to be true"(y). Lord Cranworth's opinion has been declared by the House of Lords(z), reversing the judgment of the Court of Appeal(a), to be the correct one. "The ground upon which an alleged belief was founded" is allowed to be "a most important test of its reality"(b); but if it can be found as a fact that a belief was really and honestly held, whether on reasonable grounds or not, a Edition: current; Page: [265] statement embodying that belief cannot render its maker liable in an action for deceit(c), however grossly negligent it may be, and however mischievous in its results(d).
I have given reasons elsewhere(e) for thinking this decision of the House of Lords an unfortunate one. It would be out of place to repeat those reasons here. But it may be pointed out that the reversed opinion of the Court of Appeal coincides with that which has for many years prevailed in the leading American Courts(f), and has lately been thus expressed in Massachusetts:—
"It is well settled in this Commonwealth that the charge of fraudulent intent, in an action for deceit, may be maintained by proof of a statement made, as of the party's own knowledge, which is false, provided the thing stated is not merely a matter of opinion, estimate, or judgment, but is susceptible of actual knowledge; and in such case it is not necessary to make any further proof of an actual intent to deceive. The fraud consists in stating that the party knows the thing to exist, when he does not know it to exist; and if he does not know it to exist, he must ordinarily be deemed to know that he does not"(g).
And so, still more lately, the Supreme Court of the United States not only said that "a person who makes representations of material facts, assuming or intending to convey the impression that he has adequate knowledge of the existence of such facts, when he is conscious that he Edition: current; Page: [266] has no such knowledge," is answerable as if he actually knew them to be false—which is admitted everywhere—but went on to say that a vendor or lessor may be held guilty of deceit by reason of material untrue representations "in respect to his own business or property, the truth of which representations the vendor or lessor is bound and must be presumed to know"(h). This appears to be precisely the step which in this country the Court of Appeal was prepared, but the House of Lords refused, to take.
In England, on the contrary, "negligence, however great, does not of itself constitute fraud,"(i) nor, it seems, even cast upon the defendant the burden of proving actual belief in the truth of the matter stated(i). Even the grossest carelessness, in the absence of contract, will not make a man liable for a false statement without a specific finding of fact that he knew the statement to be false or was recklessly ignorant whether it was true or false(k).
Perhaps it would have been better on principle to hold the duty in these cases to be quasi ex contractu, and evade the barren controversy about "legal fraud." One who makes a statement as of fact to another, intending him to act thereon, might well be held to request him to act upon it; and it might also have been held to be an implied term or warranty in every such request that the party making it has some reasonable ground for believing what he affirms; not necessarily sufficient ground, but such as might then and there have seemed sufficient to a man of ordinary understanding. This would not have been more artificial than holding, as the Exchequer Chamber was once prepared to hold, that the highest bona fide bidder at Edition: current; Page: [267] an auction, advertised to be without reserve, can sue the auctioneer as on a contract that the sale is really without reserve, or that he has authority to sell without reserve(l).
And such a development would have been quite parallel to others which have taken place in the modern history of the law. No one now regards an express warranty on a sale otherwise than as a matter of contract; yet until the latter part of the eighteenth century the common practice was to declare on such warranties in tort(m). But it seems now too late, at all events in this country, to follow such a line of speculation.
It has been suggested that it would be highly inconvenient to admit "inquiry into the reasonableness of a belief admitted to be honestly entertained"(n). I cannot see that the inquiry is more difficult or inconvenient than that which constantly takes place in questions of negligence, or that it is so difficult as those which are necessary in cases of malicious prosecution and abuse of privileged communications. Besides, we do not admit beliefs to be honest first and ask whether they were reasonable afterwards.
Representations subsequently discovered to be untrue. If, having honestly made a representation, a man discovers that it is not true before the other party has acted upon it, what is his position? It seems on principle that, as the offer of a contract is deemed to continue till revocation or acceptance, here the representation must be taken to be continuously made until it is acted upon, so that from the moment the party making it discovers that it is false Edition: current; Page: [268] and, having the means of communicating the truth to the other party, omits to do so, he is in point of law making a false representation with knowledge of its untruth. And such has been declared to be the rule of the Court of Chancery for the purpose of setting aside a deed. "The case is not at all varied by the circumstance that the untrue representation, or any of the untrue representations, may in the first instance have been the result of innocent error. If, after the error has been discovered, the party who has innocently made the incorrect representation suffers the other party to continue in error and act on the belief that no mistake has been made; this from the time of the discovery becomes, in the contemplation of this Court, a fraudulent misrepresentation, even though it was not so originally"(o). We do not know of any authority against this being the true doctrine of common law as well as of equity, or as applicable to an action for deceit as to the setting aside of a contract or conveyance. Analogy seems in its favour(p). Since the Judicature Acts, however, it is sufficient for English purposes to accept the doctrine from equity. The same rule holds if the representation was true when first made, but ceases to be true by reason of some event within the knowledge of the party making it and not within the knowledge of the party to whom it is made(q).Edition: current; Page: [269]
Assertions made in reckless ignorance. On the other hand if a man states as fact what he does not believe to be fact, he speaks at his peril; and this whether he knows the contrary to be true or has no knowledge of the matter at all, for the pretence of having certain information which he has not is itself a deceit. "He takes upon himself to warrant his own belief of the truth of that which he so asserts"(r). "If persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue"(s). These dicta, one of an eminent common law judge, the other of an eminent chancellor, are now both classical; their direct application was to the repudiation of contracts obtained by fraud or misrepresentation, but they state a principle which is well understood to include liability in an action for deceit(t). The ignorance referred to is conscious ignorance, the state of mind of a man who asserts his belief in a fact "when he is conscious that he knows not whether it be true or false, and when he has therefore no such belief"(u).
Breach of a special duty to give correct information. With regard to transactions in which a more or less stringent duty of giving full and correct information (not merely of abstaining from falsehood or concealment equivalent to falsehood) is imposed on one of the parties, it Edition: current; Page: [270] may be doubted whether an obligation of this kind annexed by law to particular classes of contracts can ever be treated as independent of contract. If a misrepresentation by a vendor of real property, for example, is wilfully or recklessly false, it comes within the general description of deceit. But there are errors of mere inadvertence which constantly suffice to avoid contracts of these kinds, and in such cases I do not think an action for deceit (or the analogous suit in equity) is known to have been maintained. Since Derry v. Peek it seems clear that it could not be. As regards these kinds of contracts, therefore—but, it is submitted, these only—the right of action for misrepresentation as a wrong is not co-extensive with the right of rescission. In some cases compensation may be recovered as an exclusive or alternative remedy, but on different grounds, and subject to the special character and terms of the contract.
Estoppel. Burrowes v. Lock: former supposed rule of equity. In the absence of a positive duty to give correct information or full and correct answers to inquiry, and in the absence of fraud, there is still a limited class of cases in which a man may be held to make good his statement on the ground of estoppel. Until quite lately it was supposed to be a distinct rule of equity that a man who has misrepresented, in a matter of business, facts which were specially within his knowledge, cannot be heard to say that at the time of making his statement he forgot those facts. But since Derry v. Peek(x) this is not the rule of English courts. There is no general duty to use care, much or little, in making statements of fact on which other persons are likely to act(y). If there is no contract Edition: current; Page: [271] and no breach of specific duty, nothing short of fraud or estoppel will suffice. And we have to remember that estoppel does not give a cause of action but only supplies a kind of artificial evidence(z). One of the cases hitherto relied on for the supposed rule(a) can be supported on the ground of estoppel, but on that ground only; a later and apparently not less considered and authoritative one(b) cannot be supported at all.
In short the decision of the House of Lords in Derry v. Peek is that even the grossest carelessness in stating material facts is not equivalent to fraud; and the substance of the decision is not altered by the results turning out to be of wider scope, and to have more effect on other doctrines supposed to be settled, than at the time was apprehended by a tribunal of whose acting members not one had any working acquaintance with courts of equity.
The effects of Derry v. Peek, as regards the particular class of company cases to which the decision immediately applied, have been neutralized by the Directors' Liability Act, 1890(c). As this Act "is framed to meet a particular grievance, and does not replace an unsound doctrine which leads to unfortunate results by a sounder principle which would avoid them"(d), we have no occasion to do more than mention its existence.
Intention of the statement. (c) It is not a necessary condition of liability that the misrepresentation complained of should have been made directly to the plaintiff, or that the defendant should have Edition: current; Page: [272] intended or desired any harm to come to him. It is enough that the representation was intended for him to act upon, and that he has acted in the manner contemplated, and suffered damage which was a natural and probable consequence. If the seller of a gun asserts that it is the work of a well-known maker and safe to use, that as between him and the buyer, is a warranty, and the buyer has a complete remedy in contract if the assertion is found untrue; and this will generally be his better remedy, as he need not then allege or prove anything about the defendant's knowledge; but he may none the less treat the warranty, if it be fraudulent, as a substantive ground of action in tort. If the buyer wants the gun not for his own use, but for the use of a son to whom he means to give it, and the seller knows this, the seller's assertion is a representation on which he intends or expects the buyer's son to act. And if the seller has wilfully or recklessly asserted that which is false, and the gun, being in fact of inferior and unsafe manufacture, bursts in the hands of the purchaser's son and wounds him, the seller is liable to that son, not on his warranty (for there is no contract between them, and no consideration for any), but for a deceit(e). He meant no other wrong than obtaining a better price than the gun was worth; probably he hoped it would be good enough not to burst, though not so good as he said it was; but he has put another in danger of life and limb by his falsehood, and he must abide the risk. We have to follow the authorities yet farther.
Representations to a class of persons: Polhill v. Walter. A statement circulated or published in order to be acted on by a certain class of persons, or at the pleasure of any one to whose hands it may come, is deemed to be made to Edition: current; Page: [273] that person who acts upon it, though he may be wholly unknown to the issuer of the statement. A bill is presented for acceptance at a merchant's office. He is not there, but a friend, not his partner or agent, who does his own business at the same place, is on the spot, and, assuming without inquiry that the bill is drawn and presented in the regular course of business, takes upon himself to accept the bill as agent for the drawee. Thereby he represents to every one who may become a holder of the bill in due course that he has authority to accept; and if he has in fact no authority, and his acceptance is not ratified by the nominal principal, he is liable to an action for deceit, though he may have thought his conduct was for the benefit of all parties, and expected that the acceptance would be ratified(f).
Denton v. G. N. R. Co. Again the current time-table of a railway company is a representation to persons meaning to travel by the company's trains that the company will use reasonable diligence to despatch trains at or about the stated times for the stated places. If a train which has been taken off is announced as still running, this is a false representation, and (belief in its truth on the part of the company's servants being out of the question) a person who by relying on it has missed an appointment and incurred loss may have an action for deceit against the company(g). Here Edition: current; Page: [274] there is no fraudulent intention. The default is really a negligent omission; a page of the tables should have been cancelled, or an erratum-slip added. And the negligence could hardly be called gross, but for the manifest importance to the public of accuracy in these announcements.
Peek v. Gurney. Again the prospectus of a new company, so far forth as it alleges matters of fact concerning the position and prospects of the undertaking, is a representation addressed to all persons who may apply for shares in the company; but it is not deemed to be addressed to persons who after the establishment of the company become purchasers of shares at one or more removes from the original holders(h), for the office of the prospectus is exhausted when once the shares are allotted. As regards those to whom it is addressed, it matters not whether the promoters wilfully use misleading language or not, or do or do not expect that the undertaking will ultimately be successful. The material question is, "Was there or was there not misrepresentation in point of fact?"(i). Innocent or benevolent motives do not justify an unlawful intention in law, though they are too often allowed to do so in popular morality.
Reliance on the representation. (d) As to the plaintiff's action on the faith of the defendant's representation.
A. by words or acts represents to B. that a certain state Edition: current; Page: [275] of things exists, in order to induce B. to act in a certain way. The simplest case is where B., relying wholly on A.'s statement, and having no other source of information, acts in the manner contemplated. This needs no further comment. The case of B. disbelieving and rejecting A.'s assertion is equally simple.
Another case is that A.'s representation is never communicated to B. Here, though A. may have intended to deceive B., it is plain that he has not deceived him; and an unsuccessful attempt to deceive, however unrighteous it may be, does not cause damage, and is not an actionable wrong. A fraudulent seller of defective goods who patches up a flaw for the purpose of deceiving an inspection cannot be said to have thereby deceived a buyer who omits to make any inspection at all. We should say this was an obvious proposition, if it had not been judicially doubted(k). The buyer may be protected by a condition or warranty, express or implied by law from the nature of the particular transaction; but he cannot complain of a merely potential fraud directed against precautions which he did not use. A false witness who is in readiness but is not called is a bad man, but he does not commit perjury.
Means of knowledge immaterial without actual independent inquiry. Yet another case is that the plaintiff has at hand the means of testing the defendant's statement, indicated by the defendant himself, or otherwise within the plaintiff's power, and either does not use them or uses them in a partial and imperfect manner. Here it seems plausible at first sight to contend that a man who does not use obvious Edition: current; Page: [276] means of verifying the representations made to him does not deserve to be compensated for any loss he may incur by relying on them without inquiry. But the ground of this kind of redress is not the merit of the plaintiff, but the demerit of the defendant: and it is now settled law that one who chooses to make positive assertions without warrant shall not excuse himself by saying that the other party need not have relied upon them. He must show that his representation was not in fact relied upon. In the same spirit it is now understood (as we shall see in due place) that the defence of contributory negligence does not mean that the plaintiff is to be punished for his want of caution, but that an act or default of his own, and not the negligence of the defendant, was the proximate cause of his damage. If the seller of a business fraudulently overstates the amount of the business and returns, and thereby obtains an excessive price, he is liable to an action for deceit at the suit of the buyer, although the books were accessible to the buyer before the sale was concluded(l).
Perfunctory inquiry will not do. And the same principle applies as long as the party substantially puts his trust in the representation made to him, even if he does use some observation of his own.
A cursory view of a house asserted by the vendor to be in good repair does not preclude the purchaser from complaining of substantial defects in repair which he afterwards discovers. "The purchaser is induced to make a less accurate examination by the representation, which he had a right to believe"(m). The buyer of a business is not deprived of redress for misrepresentation of the amount of profits, because he has seen or held in his hand a bundle Edition: current; Page: [277] of papers alleged to contain the entries showing those profits(n). An original shareholder in a company who was induced to apply for his shares by exaggerated and untrue statements in the prospectus is not less entitled to relief because facts negativing those statements are disclosed by documents referred to in the prospectus, which he might have seen by applying at the company's office(o).
In short, nothing will excuse a culpable misrepresentation short of proof that it was not relied on, either because the other party knew the truth, or because he relied wholly on his own investigation, or because the alleged fact did not influence his action at all. And the burden of this proof is on the person who has been proved guilty of material misrepresentation(p). He may prove any of these things if he can. It is not an absolute proposition of law that one who, having a certain allegation before him, acts as belief in that allegation would naturally induce a man to act, is deemed to have acted on the faith of that allegation. It is an inference of fact, and may be excluded by contrary proof. But the inference is often irresistible(q).
Ambiguous statements. Difficulties may arise on the construction of the statement alleged to be deceitful. Of course a man is responsible for the obvious meaning of his assertions but where the meaning is obscure, it is for the party complaining to show that he relied upon the words in a sense in which Edition: current; Page: [278] they were false and misleading, and of which they were fairly capable(r). As most persons take the first construction of obscure words which happens to strike them for the obviously right and only reasonable construction, there must always be room for perplexity in questions of this kind. Even judicial minds will differ widely upon such points, after full discussion and consideration of the various constructions proposed(s).
Lord Tenterden's Act. (e) It has already been observed in general that a false representation may at the same time be a promise or term of a contract. In particular it may be such as to amount to, or to be in the nature of, a guaranty. Now by the Statute of Frauds a guaranty cannot be sued on as a promise unless it is in writing and signed by the party to be charged or his agent. If an oral guaranty could be sued on in tort by treating it as a fraudulent affirmation instead of a promise, the statute might be largely evaded. Such actions, in fact, were a novelty a century and a quarter after the statute had been passed(t), much less were they foreseen at the time. It was pointed out, after the modern action for deceit was established, that the jurisdiction thus created was of dangerous latitude(u); and, at a time when the parties could not be witnesses in a court of common law, the objection had much force. By Edition: current; Page: [279] Lord Tenterden's Act, as it is commonly called(x), the following provision was made:—
"No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon(y), unless such representation or assurance be made in writing, signed by the party to be charged therewith."
This is something more stringent than the Statute of Frauds, for nothing is said, as in that statute, about the signature of a person "thereunto lawfully authorized," and it has been decided that signature by an agent will not do(z). Some doubt exists whether the word "ability" does or does not extend the enactment to cases where the representation is not in the nature of a guaranty at all, but an affirmation about some specific circumstance in a person's affairs. The better opinion seems to be that only statements really going to an assurance of personal credit are within the statute(a). Such a statement is not the less within it, however, because it includes the allegation of a specific collateral circumstance as a reason(b).
Quaere as to the law under the Judicature Acts. A more serious doubt is whether the enactment be now practically operative in England. The word "action" of Edition: current; Page: [280] course did not include a suit in equity at the date of the Act, and the High Court has succeeded to all (and in some points more than all) the equitable jurisdiction and powers of the Court of Chancery. But that Court would not in a case of fraud, however undoubted its jurisdiction, act on the plaintiff's oath against the defendant's, without the corroboration of documents or other material facts; and it would seem that in every case of this kind where the Court of Chancery had concurrent jurisdiction with the courts of common law (and it is difficult to assign any where it had not), Lord Tenterden's Act is now superseded by this rule of evidence or judicial prudence.
Misrepresentations made by agents. There still remain the questions which arise in the case of a false representation made by an agent on account of his principal. Bearing in mind that reckless ignorance is equivalent to guilty knowledge, we may state the alternatives to be considered as follows:—
The principal knows the representation to be false and authorizes the making of it. Here the principal is clearly liable; the agent is or is not liable according as he does not or does himself believe the representation to be true.
The principal knows the contrary of the representation to be true, and it is made by the agent in the general course of his employment but without specific authority.
Here, if the agent does not believe his representation to be true, he commits a fraud in the course of his employment and for the principal's purposes, and, according to the general rule of liability for the acts and defaults of an agent, the principal is liable(c).
If the agent does believe the representation to be true, there is a difficulty; for the agent has not done any wrong and the principal has not authorized any. Yet the other Edition: current; Page: [281] party's damage is the same. That he may rescind the contract, if he has been misled into a contract, may now be taken as settled law(d). But what if there was not any contract, or rescission has become impossible? Has he a distinct ground of action, and if so, how? Shall we say that the agent had apparent authority to pledge the belief of his principal, and therefore the principal is liable? in other words, that the principal holds out the agent as having not only authority but sufficient information to enable third persons to deal with the agent as they would with the principal? Or shall we say, less artificially, that it is gross negligence to withhold from the agent information so material that for want of it he is likely to mislead third persons dealing with the principal through him, and such negligence is justly deemed equivalent to fraud? Such a thing may certainly be done with fraudulent purpose, in the hope that the agent will, by a statement imperfect or erroneous in that very particular, though not so to his knowledge, deceive the other party. Now this would beyond question be actual fraud in the principal, with the ordinary consequences(e). If the same thing happens by inadvertence, it seems inconvenient to treat such inadvertence as venial, or exempt it from the like consequences. We think, therefore, that an action lies against the principal; whether properly to be described, under Edition: current; Page: [282] common law forms of pleading, as an action for deceit, or as an analogous but special action on the case, there is no occasion to consider(f).
On the other hand an honest and prudent agent may say, "To the best of my own belief such and such is the case," adding in express terms or by other clear indication—"but I have no information from my principal." Here there is no ground for complaint, the other party being fairly put on inquiry.
Liability of corporations herein. If the principal does not expressly authorize the representation, and does not know the contrary to be true, but the agent does, the representation being in a matter within the general scope of his authority, the principal is liable as he would be for any other wrongful act of an agent about his business. And as this liability is not founded on any personal default in the principal, it equally holds when the principal is a corporation(g). It has been suggested, but never decided, that it is limited to the amount by which the principal has profited through the agent's fraud. The Judicial Committee have held a principal liable who got no profit at all(h).
But it seems to be still arguable that the proposed limitation holds in the case of the defendant being a corporation(i), though it has been disregarded in at least one Edition: current; Page: [283] comparatively early decision of an English superior court, the bearing of which on this point has apparently been overlooked(k). Ulpian, on the other hand, may be cited in its favour(l).
Reason of an apparently hard law. The hardest case that can be put for the principal, and by no means an impossible one, is that the principal authorizes a specific statement which he believes to be true, and which at the time of giving the authority is true; before the agent has executed his authority the facts are materially changed to the knowledge of the agent, but unknown to the principal; the agent conceals this from the principal, and makes the statement as originally authorized. But the case is no harder than that of a manufacturer or carrier who finds himself exposed to heavy damages at the suit of an utter stranger by reason of the negligence of a servant, although he has used all diligence in choosing his servants and providing for the careful direction of their work. The necessary and sufficient condition of the master's responsibility is that the act or default of the servant or agent belonged to the class of acts which he was put in the master's place to do, and was committed for the master's purposes. And "no sensible distinction can be drawn Edition: current; Page: [284] between the case of fraud and the case of any other wrong." The authority of Barwick v. English Joint Stock Bank(m) is believed, notwithstanding the doubts still sometimes expressed, to be conclusive.
Slander of title. The wrong called Slander of Title is in truth a special variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff himself, are induced by the defendant's falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation; it is "an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title"(n). Also the wrong is a malicious one in the only proper sense of the word, that is, absence of good faith is an essential condition of liability(o); or actual malice, no less than special damage, is of the gist of the action. The special damage required to support this kind of action is actual damage, not necessarily damage proved with certainty in every particular. Such damage as is the natural consequence of the false statement may be special enough though the connexion may be not specifically proved(p).
Recent extensions of the principle. This kind of action is not frequent. Formerly it appears to have been applied only to statements in disparagement Edition: current; Page: [285] of the plaintiff's title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and copyright. But an assertion of title made by way of self-defence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith(q). In America the law has been extended to the protection of inchoate interests under an agreement. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting loss to him, and it is held to make no difference that the original agreement was not enforceable for want of satisfying the Statute of Frauds(r).
A disparaging statement concerning a man's title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business: in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving malice(s). Again an action in the nature of slander of title lies for damage caused by wilfully false statements tending to Edition: current; Page: [286] damage the plaintiff's business, such as that he has ceased to carry it on; and it is immaterial whether the statements are or are not injurious to the plaintiff's personal character(t). In short, "that an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law"(u).
It has been held in Massachusetts that if A. has exclusive privileges under a contract with B., and X. by purposely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A.(v). In that case the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers' caps, so as to suggest that they were authorized and employed by the hotel-keeper to ply between the hotel and the railway station; and there was some evidence of express statements by the defendants' servants that their coach was "the regular coach." The plaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defendants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way; but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representation and the special rules as to the infringement of rights to a trade mark or trade name(w). No English Edition: current; Page: [287] case much like it has been met with: its peculiarity is that no title to any property or to a defined legal right was in question. The hotel-keeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of goodwill, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of protection, since it exists by virtue of some express contract which affords a more convenient remedy. Some years ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law(x).
Trade marks and trade names. The protection of trade marks and trade names was originally undertaken by the courts on the ground of preventing fraud(y). But the right to a trade mark, after being more and more assimilated to proprietary rights(z), has become a statutory franchise analogous to patent rights and copyright(a); and in the case of a trade name, although the use of a similar name cannot be complained of unless it is shown to have a tendency to deceive customers, yet the tendency is enough; the plaintiff is not bound to prove any fraudulent intention or even negligence Edition: current; Page: [288] against the defendant(b). The wrong to be redressed is conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here.
Malicious prosecution. We have here one of the few cases in which proof of evil motive is required to complete an actionable wrong. "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause(c); and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice"(d). And the plaintiff's case fails if his proof fails at any one of these points. So the law has been defined by the Court of Appeal and approved by the House of Lords. Edition: current; Page: [289] It seems needless for the purposes of this work to add illustrations from earlier authorities.
It is no excuse for the defendant that he instituted the prosecution under the order of a Court, if the Court was moved by the defendant's false evidence (though not at his request) to give that order, and if the proceedings in the prosecution involved the repetition of the same falsehood. For otherwise the defendant would be allowed to take advantage of his own fraud upon the Court which ordered the prosecution(e).
As in the case of deceit, and for similar reasons, it has been doubted whether an action for malicious prosecution will lie against a corporation. It seems, on principle, that such an action will lie if the wrongful act was done by a servant of the corporation in the course of his employment and in the company's supposed interest, and it has been so held(f); but there are dicta to the contrary(g), and in particular a recent emphatic opinion of Lord Bramwell's(h), which, however, as pointed out by some of his colleagues at the time(i), was extra-judicial.
Malicious civil proceedings. Generally speaking, it is not an actionable wrong to institute civil proceedings without reasonable and probable cause, even if malice be proved. For in contemplation of law the defendant who is unreasonably sued is sufficiently indemnified by a judgment in his favour which gives him his costs against the plaintiff(k). And special damage Edition: current; Page: [290] beyond the expense to which he has been put cannot well be so connected with the suit as a natural and probable consequence that the unrighteous plaintiff, on the ordinary principles of liability for indirect consequences, will be answerable for them(l). "In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution"(m).
But there are proceedings which, though civil, are not ordinary actions, and fall within the reason of the law which allows an action to lie for the malicious prosecution of a criminal charge. That reason is that prosecution on a charge "involving either scandal to reputation, or the possible loss of liberty to the person"(n), necessarily and manifestly imports damage. Now the commencement of proceedings in bankruptcy against a trader, or the analogous process of a petition to wind up a company, is in itself a blow struck at the credit of the person or company whose affairs are thus brought in question. Therefore such a proceeding, if instituted without reasonable and probable cause and with malice, is an actionable wrong(o). Other Edition: current; Page: [291] similar exceptional cases were possible so long as there were forms of civil process commencing with personal attachment; but such procedure has not now any place in our system; and the rule that in an ordinary way a fresh action does not lie for suing a civil action without cause has been settled and accepted for a much longer time(p). In common law jurisdictions where a suit can be commenced by arrest of the defendant or attachment of his property, the old authorities and distinctions may still be material(q). The principles are the same as in actions for malicious prosecution, mutatis mutandis: thus an action for maliciously procuring the plaintiff to be adjudicated a bankrupt will not lie unless and until the adjudication has been set aside(r).
Probably an action will lie for bringing and prosecuting an action in the name of a third person maliciously (which must mean from ill-will to the defendant in the action, and without an honest belief that the proceedings are or will be authorized by the nominal plaintiff), and without reasonable or probable cause, whereby the party against whom that action is brought sustains damage; but certainly such an action does not lie without actual damage(s).
The explanation of malice as "improper and indirect motive" appears to have been introduced by the judges of the King's Bench between sixty and seventy years ago. But "motive" is perhaps not a much clearer term. "A wish to injure the party rather than to vindicate the law" would be more intelligible(ss).
Conspiracy. The modern action for malicious prosecution has taken the place of the old writ of conspiracy and the action on the case grounded thereon(t), out of which it seems to have developed. Whether conspiracy is known to the law as a substantive wrong, or in other words whether two or more persons can ever be joint wrong-doers, and liable to an action as such, by doing in execution of a previous agreement something it would not have been unlawful for them to do without such agreement, is a question of mixed history and speculation not wholly free from doubt. It seems however to be now settled for practical purposes that the conspiracy or "confederation" is only matter of inducement or evidence(u). "As a rule it is the damage wrongfully done, and not the conspiracy, that is the gist of actions on the case for conspiracy"(x). "In all such cases it will be found that there existed either an ultimate object of malice or wrong, or wrongful means of execution involving elements of injury to the public, or at least negativing the pursuit of a lawful object"(y). Either the wrongful acts by which the plaintiff has suffered were such as one person could not commit alone(z), say a riot, or they were wrongful because malicious, and the malice is proved by showing that they were done in execution of a concerted design. In the singular case of Gregory v. Duke of Brunsicick(a) the action was in effect for hissing the Edition: current; Page: [293] plaintiff off the stage of a theatre in pursuance of a malicious conspiracy between the defendants. The Court were of opinion that in point of law the conspiracy was material only as evidence of malice, but that in point of fact there was no other such evidence, and therefore the jury were rightly directed that without proof of it the plaintiff's case must fail.
"It may be true, in point of law, that, on the declaration as framed, one defendant might be convicted though the other were acquitted; but whether, as a matter of fact, the plaintiff could entitle himself to a verdict against one alone, is a very different question. It is to be borne in mind that the act of hissing in a public theatre is, prima facie, a lawful act; and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very difficult to infer such a motive from the insulated acts of one person unconnected with others. Whether, on the facts capable of proof, such a case of malice could be made out against one of the defendants, as, apart from any combination between the two, would warrant the expectation of a verdict against the one alone, was for the consideration of the plaintiff's counsel; and, when he thought proper to rest his case wholly on proof of conspiracy, we think the judge was well warranted in treating the case as one in which, unless the conspiracy were established, there was no ground for saying that the plaintiff was entitled to a verdict; and it would have been unfair towards the defendants to submit it to the jury as a case against one of the defendants to the exclusion of the other, when the attention of their counsel had never been called to that view of the case, nor had any opportunity [been ?] given them to advert to or to answer it. The case proved was, in fact, a case of conspiracy, or it was no Edition: current; Page: [294] case at all on which the jury could properly find a verdict for the plaintiff"(b).
Soon after this case was dealt with by the Court of Common Pleas in England, the Supreme Court of New York laid it down (not without examination of the earlier authorities) that conspiracy is not in itself a cause of action(c).
In 1889 the question was raised in a curious and important case in this country. The material facts may, perhaps, be fairly summarized, for the present purpose, as follows:—A., B., and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B., and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q. and all other competitors outside the combination. This action had the effect of driving Q. out of the market in question, as it was intended to do. It was held by the majority of the Court of Appeal, and unanimously by the House of Lords, that A., B., and C. had done nothing which would have been unlawful if done by a single trader in his own sole interest, and that their action did not become unlawful by reason of being undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not have been enforced by any of the parties if the others had refused to execute it, but that did not make it punishable or wrongful(d).Edition: current; Page: [295]
It is possible, however, that an agreement of this kind might in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience(e). At the same time, even if this be admitted, it would not be easy for a court to say beforehand how far any particular trade combination was likely to have permanently mischievous results(f).
Relation of conspiracy to lawful acts or forbearances of third persons. It would seem to follow from the principles of the modern cases that it cannot be an actionable conspiracy for two or more persons, by lawful means, to induce another or others to do what they are by law free to do or to abstain from doing what they are not bound by law to do. Yet the Court of Appeal has held that procuring persons—not to break a contract, but—not to renew expiring contracts or make a fresh contract, may be actionable if done "maliciously," without any allegation that intimidation or other unlawful means were used(g). It is submitted that not even the authority of the Court of Appeal will make this decision correct, and that it is not really consistent with the decision of the House of Lords in the Mogul Company's case.
Malicious interference with one's occupation, contract, or franchise. There may be other malicious injuries not capable of more specific definition "where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood"; as where the plaintiff is owner of a decoy Edition: current; Page: [296] for catching wild fowl, and the defendant, without entering on the plaintiff's land, wilfully fires off guns near to the decoy, and frightens wild fowl away from it(h). Not many examples of the kind are to be found, and this is natural; for they have to be sought in a kind of obscure middle region where the acts complained of are neither wrongful in themselves as amounting to trespass against the plaintiff or some third person(i), nuisance(k), or breach of an absolute specific duty, nor yet exempt from search into their motives as being done in the exercise of common right in the pursuit of a man's lawful occupation or the ordinary use of his property(l). Mere competition carried on for the purpose of gain, not out of actual malice, and not by unlawful means, such as molestation or intimidation, is not actionable, even though it be intended to drive a rival trader out of the field, and produce that result(m). "The policy of our law, as at present declared by the legislature, is against all fetters on combination and competition unaccompanied by violence or fraud or other like injurious acts"(n). Beyond generally forbidding the use of means unlawful in themselves, the law does not impose any restriction upon competition by one trader with another with the sole view of benefiting himself. A different question would arise if there were evidence of an intention on the defendant's part to injure the plaintiff Edition: current; Page: [297] without benefiting himself. "Thus, if several persons agree not to deal at all with a particular individual, as this could not, under ordinary circumstances, benefit the persons so agreeing"(o). Driving a public performer off the stage by marks of disapprobation which proceed not from an honest opinion of the demerits of his performance or person, but from private enmity, is, as we have just seen, a possible but doubtful instance of this sort of wrong(p). Holt put the case of a schoolmaster frightening away children from attendance at a rival school(q). It is really on the same principle that an action has been held to lie for maliciously (that is, with the design of injuring the plaintiff or gaining some advantage at his expense) procuring a third person to break his contract with the plaintiff, and thereby causing damage to the plaintiff(r). The precise extent and bearing of the doctrine are discussed in the final chapter of this book with reference to the difficulties that have been felt about it, and expressed in dissenting judgments and elsewhere. Those difficulties (I submit and shall in that place endeavour to prove) either disappear or are greatly reduced when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill-will, is a necessary element.
Generally speaking, every wilful interference with the exercise of a franchise is actionable without regard to the defendant's act being done in good faith, by reason of a mistaken notion of duty or claim of right, or being consciously wrongful. "If a man hath a franchise and is Edition: current; Page: [298] hindered in the enjoyment thereof, an action doth lie, which is an action upon the case"(s). But persons may as public officers be in a quasi-judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense malicious, denial of right(t). In such cases the wrong, if any, belongs to the class we have just been considering.
Maintenance. The wrong of maintenance, or aiding a party in litigation without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is akin to malicious prosecution and other abuses of legal process; but the ground of it is not so much an independent wrong as particular damage resulting from "a wrong founded upon a prohibition by statute"—a series of early statutes said to be in affirmation of the common law—"which makes it a criminal act and a misdemeanor"(u). Hence it seems that a corporation cannot be guilty of maintenance(u). Actions for maintenance are in modern times rare though possible(x); and the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for maintaining the suit of a stranger(y), does not tend to encourage them.
Absolute duty to respect others' property. Every kind of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in acting for our own interest(a), or even an honest intention to act for the benefit of the true owner(b), will avail us nothing if we transgress.
Title, justification, excuse. A man may be entitled in divers ways to deal with property moveable or immoveable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the Edition: current; Page: [300] law of property to tell us what are the rights of owners and possessors, and by what acts in the law they may be created, transferred, or destroyed. Again, a man may have the right of using property to a limited extent, and either to the exclusion of all other persons besides the owner or possessor, or concurrently with other persons, without himself being either owner or possessor. The definition of such rights belongs to that part of the law of property which deals with easements and profits. Again, he may be authorized by law, for the execution of justice or for purposes of public safety and convenience, or under exceptional conditions for the true owner's benefit, to interfere with property to which he has no title and does not make any claim. We have seen somewhat of this in the chapter of "General Exceptions." Again, he may be justified by a consent of the owner or possessor which does not give him any interest in the property, but merely excuses an act, or a series of acts, that otherwise would be wrongful. Such consent is known as a licence.
Title dependent on contract. Title to property, and authority to deal with property in specified ways, are commonly conferred by contract or in pursuance of some contract. Thus it oftentimes depends on the existence or on the true construction of a contract whether a right of property exists, or what is the extent of rights admitted to exist. A man obtains goods by fraud and sells them to another purchaser who buys in good faith, reasonably supposing that he is dealing with the true owner. The fraudulent re-seller may have made a contract which the original seller could have set aside, as against him, on the ground of fraud. If so, he acquires property in the goods, though a defeasible property, and the ultimate purchaser in good faith has a good title. But the circumstances of the fraud may have been such Edition: current; Page: [301] that there was no true consent on the part of the first owner, no contract at all, and no right of property whatever, not so much as lawful possession, acquired by the apparent purchaser. If so, the defrauder has not any lawful interest which he can transfer even to a person acting in good faith and reasonably: and the ultimate purchaser acquires no manner of title, and notwithstanding his innocence is liable as a wrong-doer(c). Principles essentially similar, but affected in their application, and not unfrequently disguised, by the complexity of our law of real property, hold good of dealings with land(d).
Exceptional protection of certain dealings in good faith. Acts of persons dealing in good faith with an apparent owner may be, and have been, protected in various ways and to a varying extent by different systems of law. The purchaser from an apparent owner may acquire, as under the common-law rule of sales in market overt, a better title than his vendor had; or, by an extension in the same line, the dealings of apparently authorized agents in the way of sale or pledge may, for the security of commerce, have a special validity conferred on them, as under our Factors Acts(e); or one who has innocently dealt with goods which he is now unable to produce or restore specifically may be held personally excused, saving the true owner's liberty to retake the goods if he can find them, and subject to the remedies over, if any, which may be available under a contract of sale or a warranty for the person dispossessed by the true owner. Excuse of this kind is however rarely admitted, though much the same Edition: current; Page: [302] result may sometimes be arrived at on special technical grounds.
The rights and remedies known to the common law are possessory. It would seem that, apart from doubtful questions of title (which no system of law can wholly avoid), there ought not to be great difficulty in determining what amounts to a wrong to property, and who is the person wronged. But in fact the common law does present great difficulties; and this because its remedies were bound, until a recent date, to medieval forms, and limited by medieval conceptions. The forms of action brought not Ownership but Possession to the front in accordance with a habit of thought which, strange as it may now seem to us, found the utmost difficulty in conceiving rights of property as having full existence or being capable of transfer and succession unless in close connexion with the physical control of something which could be passed from hand to hand, or at least a part of it delivered in the name of the whole(f). An owner in possession was protected against disturbance, but the rights of an owner out of possession were obscure and weak. To this day it continues so with regard to chattels. For many purposes the "true owner" of goods is the person, and only the person, entitled to immediate possession. The term is a short and convenient one, and may be used without scruple, but on condition of being rightly understood. Regularly the common law protects ownership only through possessory rights and remedies. The reversion or reversionary interest of the freeholder or general owner out of possession is indeed well known to our authorities, and Edition: current; Page: [303] by conveyancers it is regarded as a present estate or interest. But when it has to be defended in a court of common law, the forms of action treat it rather as the shadow cast before by a right to possess at a time still to come. It has been said that there is no doctrine of possession in our law. The reason of this appearance, an appearance capable of deceiving even learned persons, is that possession has all but swallowed up ownership; and the rights of a possessor, or one entitled to possess, have all but monopolized the very name of property. There is a common phrase in our books that possession is prima facie evidence of title. It would be less intelligible at first sight, but not less correct, to say that in the developed system of common law pleading and procedure, as it existed down to the middle of this century, proof of title was material only as evidence of a right to possess. And it must be remembered that although forms of action are no longer with us, causes of action are what they were, and cases may still occur where it is needful to go back to the vanished form as the witness and measure of subsisting rights. The sweeping protection given to rights of property at this day is made up by a number of theoretically distinct causes of action. The disturbed possessor had his action of trespass (in some special cases replevin); if at the time of the wrong done the person entitled to possess was not in actual legal possession, his remedy was detinue, or, in the developed system, trover. An owner who had neither possession nor the immediate right to possession could redress himself by a special action on the case, which did not acquire any technical name.
Possession and detention. Notwithstanding first appearances, then, the common law has a theory of possession, and a highly elaborated one. Edition: current; Page: [304] To discuss it fully would not be appropriate here(g); but we have to bear in mind that it must be known who is in legal possession of any given subject of property, and who is entitled to possess it, before we can tell what wrongs are capable of being committed, and against whom, by the person having physical control over it, or by others. Legal possession does not necessarily coincide either with actual physical control or the present power thereof (the "detention" of Continental terminology), or with the right to possess (constantly called "property" in our books); and it need not have a rightful origin. The separation of detention, possession in the strict sense, and the right to possess, is both possible and frequent. A lends a book to B., gratuitously and not for any fixed time, and B. gives the book to his servant to carry home. Here B.'s servant has physical possession, better named custody or detention, but neither legal possession(h) nor the right to possess; B. has legal and rightful possession, and the right to possess as against every one but A.; while A. has not possession, but has a right to possess which he can make absolute at any moment by determining the bailment to B., and which the law regards for many purposes as if it were already absolute. As to an actual legal possession (besides and beyond mere detention) being acquired by wrong, the wrongful change of possession was the very substance of disseisin as to land, and is still the very substance of trespass by taking and carrying away goods (de Edition: current; Page: [305] bonis asportatis), and as such it was and is a necessary condition of the offence of larceny at common law.
The common law, when it must choose between denying legal possession to the person apparently in possession, and attributing it to a wrong-doer, generally prefers the latter course. In Roman law there is no such general tendency, though the results are often similar(i).
Trespass and conversion. Trespass is the wrongful disturbance of another person's possession of land(j) or goods. Therefore it cannot be committed by a person who is himself in possession(k); though in certain exceptional cases a dispunishable or even a rightful possessor of goods may by his own act, during a continuous physical control, make himself a mere trespasser. But a possessor may do wrong in other ways. He may commit waste as to the land he holds, or he may become liable to an action of ejectment by holding over after his title or interest is determined. As to goods he may detain them without right after it has become his duty to return them, or he may convert them to his own use, a phrase of which the scope has been greatly extended in the modern law. Thus we have two kinds of duty, namely to refrain from meddling with what is lawfully possessed by another, and to refrain from abusing possession which we have lawfully gotten under a limited title; Edition: current; Page: [306] and the breach of these produces distinct kinds of wrong, having, in the old system of the common law, their distinct and appropriate remedies. But a strict observance of these distinctions in practice would have led to intolerable results, and a working margin was given by beneficent fictions which (like most indirect and gradual reforms) extended the usefulness of the law at the cost of making it intricate and difficult to understand. On the one hand the remedies of an actual possessor were freely accorded to persons who had only the right to possess(l); on the other hand the person wronged was constantly allowed at his option to proceed against a mere trespasser as if the trespasser had only abused a lawful or at any rate excusable possession.
Alternative remedies. In the later history of common law pleading trespass and conversion became largely though not wholly interchangeable. Detinue, the older form of action for the recovery of chattels, was not abolished, but it was generally preferable to treat the detention as a conversion and sue in trover(m), so that trover practically superseded detinue, as the writ of right and the various assizes, the older and once the only proper remedies whereby a freeholder could recover possession of the land, were superseded by ejectment, a remedy at first introduced merely for the protection of leasehold interests. With all their artificial extensions these forms of action did not completely suffice. There might still be circumstances in which a special action on the case was required. And these complications cannot Edition: current; Page: [307] be said to be even now wholly obsolete. For exceptional circumstances may still occur in which it is doubtful whether an action lies without proof of actual damage, or, assuming that the plaintiff is entitled to judgment, whether that judgment shall be for the value of the goods wrongfully dealt with or only for his actual damage, which may be a nominal sum. Under such conditions we have to go back to the old forms and see what the appropriate action would have been. This is not a desirable state of the law(n), but while it exists we must take account of it.
What shall be said a trespass. Trespass may be committed by various kinds of acts, of which the most obvious are entry on another's land (trespass quare clausum fregit), and taking another's goods (trespass de bonis asportatis)(o). Notwithstanding that trespasses punishable in the king's court were said to be vi et armis, and were supposed to be punishable as a breach of the king's peace, neither the use of force, nor the breaking of an inclosure or transgression of a visible boundary, nor even an unlawful intention, is necessary to constitute an actionable trespass. It is likewise immaterial, in strictness of law, whether there be any actual damage or not. "Every invasion of private property, be it ever so minute, is a trespass"(p). There is no doubt that if one walks across a stubble field without lawful authority or the occupier's leave, one is technically a trespasser, and it may be doubted Edition: current; Page: [308] whether persons who roam about common lands, not being in exercise of some particular right, are in a better position. It may be that, where the public enjoyment of such lands for sporting or other recreation is notorious, for example on Dartmoor(q), a licence (as to which more presently) would be implied. Oftentimes warnings or requests are addressed to the public to abstain from going on some specified part of open land or private ways, or from doing injurious acts. In such cases there seems to be a general licence to use the land or ways in conformity with the owner's will thus expressed. But even so, persons using the land are no more than "bare licensees," and their right is of the slenderest. Loitering on a highway, not for the purpose of using it as a highway, but for the purpose of annoying the owner of the soil in his lawful use of the adjacent land, may be a trespass against that owner(r).
Quaere concerning balloons. It has been doubted whether it is a trespass to pass over land without touching the soil, as one may in a balloon, or to cause a material object, as shot fired from a gun, to pass over it. Lord Ellenborough thought it was not in itself a trespass "to interfere with the column of air superincumbent on the close," and that the remedy would be by action on the case for any actual damage: though he had no difficulty in holding that a man is a trespasser who fires a gun on his own land so that the shot fall on his neighbour's land(s). Fifty years later Lord Blackburn inclined to think differently(t), and his opinion seems Edition: current; Page: [309] the better. Clearly there can be a wrongful entry on land below the surface, as by mining, and in fact this kind of trespass is rather prominent in our modern books. It does not seem possible on the principles of the common law to assign any reason why an entry at any height above the surface should not also be a trespass. The improbability of actual damage may be an excellent practical reason for not suing a man who sails over one's land in a balloon; but this appears irrelevant to the pure legal theory. Trespasses clearly devoid of legal excuse are committed every day on the surface itself, and yet are of so harmless a kind that no reasonable occupier would or does take any notice of them. Then one can hardly doubt that it might be a nuisance, apart from any definite damage, to keep a balloon hovering over another man's land: but if it is not a trespass in law to have the balloon there at all, one does not see how a continuing trespass is to be committed by keeping it there. Again, it would be strange if we could object to shots being fired across our land only in the event of actual injury being caused, and the passage of the foreign body in the air above our soil being thus a mere incident in a distinct trespass to person or property. The doctrine suggested by Lord Ellenborough's dictum, if generally accepted and acted on, would so far be for the benefit of the public service that the existence of a right of "innocent passage" for projectiles over the heads and lands of the Queen's subjects would increase the somewhat limited facilities of the land forces for musketry and artillery practice at long ranges. But we are not aware that such a right has in fact been claimed or exercised.
Trespass by a man's cattle is dealt with exactly like trespass by himself; but in the modern view of the law Edition: current; Page: [310] this is only part of a more general rule or body of rules imposing an exceptionally strict and unqualified duty of safe custody on grounds of public expediency. In that connexion we shall accordingly return to the subject(u).
Encroachment under or above ground by the natural growth of roots or branches of a tree standing in adjacent land is not a trespass, though it may be a nuisance(v).
Trespass to goods. Trespass to goods may be committed by taking possession of them, or by any other act "in itself immediately injurious" to the goods in respect of the possessor's interest(x), as by killing(y), beating(z), or chasing(a) animals, or defacing a work of art. Where the possession is changed the trespass is an asportation (from the old form of pleading, cepit et asportavit for inanimate chattels, abduxit for animals), and may amount to the offence of theft. Other trespasses to goods may be criminal offences under the head of malicious injury to property. The current but doubtful doctrine of the civil trespass being "merged in the felony" when the trespass is felonious has been considered in an earlier chapter(b). Authority, so far as known to the present writer, does not clearly show whether it is in strictness a trespass merely to lay hands on another's chattel without either dispossession(c) or actual damage. By the analogy of trespass to land it seems that it must be so. There is no doubt that the least actual damage would be enough(d). And cases are conceivable Edition: current; Page: [311] in which the power of treating a mere unauthorized touching as a trespass might be salutary and necessary, as where valuable objects are exhibited in places either public or open to a large class of persons. In the old precedents trespass to goods hardly occurs except in conjunction with trespass to land(e).
Wrongs to an owner not in possession. A person in possession of property may do wrong by refusing to deliver possession to a person entitled, or by otherwise assuming to deal with the property as owner or adversely to the true owner, or by dealing with it under colour of his real possessory title but in excess of his rights, or, where the nature of the object admits of it, by acts amounting to destruction or total change of character, such as breaking up land by opening mines, burning wood, grinding corn, or spinning cotton into yarn, which acts however are only the extreme exercise of assumed dominion. The law started from entirely distinct conceptions of the mere detaining of property from the person entitled, and the spoiling or altering it to the prejudice of one in reversion or remainder, or a general owner(f). For the former case the common law provided its most ancient remedies—the writ of right (and later the various assizes and the writ of entry) for land, and the parallel writ of detinue (parallel as being merely a variation of the writ of debt, which was precisely similar in form to the writ of right) Edition: current; Page: [312] for goods; to this must be added, in special, but once frequent and important cases, replevin(g). For the latter the writ of waste (as extended by the Statutes of Marlbridge and Gloucester) was available as to land; later this was supplanted by an action on the case(h) "in the nature of waste," and in modern times the power and remedies of courts of equity have been found still more effectual(i). The process of devising a practical remedy for owners of chattels was more circuitous; they were helped by an action on the case which became a distinct species under the name of trover, derived from the usual though not necessary form of pleading, which alleged that the defendant found the plaintiff's goods and converted them to his own use(k). The original notion of conversion in personal chattels answers closely to that of waste in tenements; but it was soon extended so as to cover the whole ground of detinue(l), and largely overlap trespass; Edition: current; Page: [313] a mere trespasser whose acts would have amounted to conversion if done by a lawful possessor not being allowed to take exception to the true owner "waiving the trespass," and professing to assume in the defendant's favour that his possession had a lawful origin.
Waste. Waste is any unauthorized act of a tenant for a freehold estate not of inheritance, or for any lesser interest, which tends to the destruction of the tenement, or otherwise to the injury of the inheritance. Such injury need not consist in loss of market value; an alteration not otherwise mischievous may be waste in that it throws doubt on the identification of the property, and thereby impairs the evidence of title. It is said that every conversion of land from one species to another—as ploughing up woodland, or turning arable into pasture land—is waste, and it has even been said that building a new house is waste(m). But modern authority does not bear this out; "in order to prove waste you must prove an injury to the inheritance" either "in the sense of value" or "in the sense of destroying identity"(n). And in the United States, especially the Western States, many acts are held to be only in a natural and reasonable way of using and improving the land—clearing wild woods for example—which in England, or even in the Eastern States, would be manifest waste(o). As to permissive waste, i.e., suffering the tenement to lose its value or go to ruin for want of necessary repair, a tenant for life or years is liable therefor if an express duty to repair is imposed upon him by the Edition: current; Page: [314] instrument creating his estate; otherwise he is not(p). It seems that it can in no case be waste to use a tenement in an apparently reasonable and proper manner, "having regard to its character and to the purposes for which it was intended to be used"(q), whatever the actual consequences of such user may be. Where a particular course of user has been carried on for a considerable course of time, with the apparent knowledge and assent of the owner of the inheritance, the Court will make all reasonable presumptions in favour of referring acts so done to a lawful origin(r). Destructive waste by a tenant at will may amount to trespass, in the strict sense, against the lessor. The reason will be more conveniently explained hereafter(s).
Modern law of waste: tenants for life. In modern practice, questions of waste arise either between a tenant for life(t) and those in remainder, or between landlord and tenant. In the former case, the unauthorized cutting of timber is the most usual ground of complaint; in the latter, the forms of misuse or neglect are as various as the uses, agricultural, commercial, or manufacturing, for which the tenement may be let and occupied. With regard to timber, it is to be observed Edition: current; Page: [315] that there are "timber estates" on which wood is grown for the purpose of periodical cutting and sale, so that "cutting the timber is the mode of cultivation"(u). On such land cutting the timber is equivalent to taking a crop off arable land, and if done in the usual course is not waste. A tenant for life whose estate is expressed to be without impeachment of waste may freely take timber and minerals for use, but, unless with further specific authority, he must not remove timber planted for ornament (save so far as the cutting of part is required for the preservation of the rest)(x) open a mine in a garden or pleasure-ground, or do like acts destructive to the individual character and amenity of the dwelling-place(y). The commission of such waste may be restrained by injunction, without regard to pecuniary damage to the inheritance: but, when it is once committed, the normal measure of damages can only be the actual loss of value(z). Further details on the subject would not be appropriate here. They belong rather to the law of Real Property.
Landlord and tenant. As between landlord and tenant the real matter in dispute, in a case of alleged waste, is commonly the extent Edition: current; Page: [316] of the tenant's obligation, under his express or implied covenants, to keep the property demised in safe condition or repair. Yet the wrong of waste is none the less committed (and under the old procedure was no less remediable by the appropriate action on the case) because it is also a breach of the tenant's contract(a). Since the Judicature Acts it is impossible to say whether an action alleging misuse of the tenement by a lessee is brought on the contract or as for a tort(b): doubtless it would be treated as an action of contract if it became necessary for any purpose to assign it to one or the other class.
Conversion: relation of trover to trespass. Conversion, according to recent authority, may be described as the wrong done by "an unauthorized act which deprives another of his property permanently or for an indefinite time"(c). Such an act may or may not include a trespass; whether it does or not is immaterial as regards the right of the plaintiff in a civil action, for even under the old forms he might "waive the trespass"; though as regards the possibility of the wrong-doer being criminally liable it may still be a vital question, trespass by taking and carrying away the goods being a necessary element in the offence of larceny at common law. But the definition of theft (in the first instance narrow but strictly consistent, afterwards complicated by some judicial refinements and by numerous unsystematic statutory additions) does not concern us here. The "property" of which the plaintiff Edition: current; Page: [317] is deprived—the subject-matter of the right which is violated—must be something which he has the immediate right to possess; only on this condition could one maintain the action of trover under the old forms. Thus, where goods had been sold and remained in the vendor's possession subject to the vendor's lien for unpaid purchase-money, the purchaser could not bring an action of trover against a stranger who removed the goods, at all events without payment or tender of the unpaid balance(d).
But an owner not entitled to immediate possession might have a special action on the case, not being trover, for any permanent injury to his interest, though the wrongful act might also be a trespass, conversion, or breach of contract as against the immediate possessor(e). As under the Judicature Acts the difference of form between trover and a special action which is not trover does not exist, there seems to be no good reason why the idea and the name of conversion should not be extended to cover these last-mentioned cases.
What amounts to conversion. On the other hand, the name has been thought altogether objectionable by considerable authorities(f): and certainly the natural meaning of converting property to one's own use has long been left behind. It came to be seen that the actual diversion of the benefit arising from use and possession was only one aspect of the wrong, and not a constant one. It did not matter to the plaintiff whether it was the defendant, or a third person taking Edition: current; Page: [318] delivery from the defendant, who used his goods, or whether they were used at all; the essence of the injury was that the use and possession were dealt with in a manner adverse to the plaintiff and inconsistent with his right of dominion.
The grievance is the unauthorized assumption of the powers of the true owner. Actually dealing with another's goods as owner for however short a time and however limited a purpose(g) is therefore conversion; so is an act which in fact enables a third person to deal with them as owner, and which would make such dealing lawful only if done by the person really entitled to possess the goods(h). It makes no difference that such acts were done under a mistaken but honest and even reasonable supposition of being lawfully entitled(g), or even with the intention of benefiting the true owner(h); nor is a servant, or other merely ministerial agent, excused for assuming the dominion of goods on his master's or principal's behalf, though he "acted under an unavoidable ignorance and for his master's benefit"(i). It is common learning that a refusal to deliver possession to the true owner on demand is evidence of a conversion, but evidence only(k); that is, one natural inference if I hold a thing and will not deliver it to the owner is that I repudiate his ownership and mean to exercise dominion in despite of his title either on my own behalf or on some other claimant's. "If the refusal is in Edition: current; Page: [319] disregard of the plaintiff's title, and for the purpose of claiming the goods either for the defendant or for a third person, it is a conversion"(l). But this is not the only possible inference and may not be the right one. The refusal may be a qualified and provisional one: the possessor may say, "I am willing to do right, but that I may be sure I am doing right, give me reasonable proof that you are the true owner": and such a possessor, even if over-cautious in the amount of satisfaction he requires, can hardly be said to repudiate the true owner's claim(m). Or a servant having the mere custody of goods under the possession of his master as bailee—say the servant of a warehouseman having the key of the warehouse—may reasonably and justifiably say to the bailor demanding his goods: "I cannot deliver them without my master's order"; and this is no conversion. "An unqualified refusal is almost always conclusive evidence of a conversion; but if there be a qualification annexed to it, the question then is whether it be a reasonable one"(n). Again there may be a wrongful dealing with goods, not under an adverse claim, but to avoid having anything to do with them or with their owner. Where a dispute arises between the master of a ferryboat and a passenger, and the master refuses to carry the passenger and puts his goods on shore, this may be a trespass, but it is not of itself a conversion(o). This seems of little importance in modern practice, but we shall see that it might still affect the measure of damages.
In many cases the refusal to deliver on demand not only Edition: current; Page: [320] proves but constitutes the conversion. When this is so, the Statute of Limitation runs from the date of the refusal, without regard to any prior act of conversion by a third person(p).
By a conversion the true owner is, in contemplation of law, totally deprived of his goods; therefore, except in a few very special cases(q), the measure of damages in an action of trover was the full value of the goods, and by a satisfied judgment(r) for the plaintiff the property in the goods, if they still existed in specie, was transferred to the defendant.
Acts not amounting to conversion. The mere assertion of a pretended right to deal with goods or threatening to prevent the owner from dealing with them is not conversion, though it may perhaps be a cause of action, if special damage can be shown(s); indeed it is doubtful whether a person not already in possession can commit the wrong of conversion by any act of interference limited to a special purpose and falling short of a total assumption of dominion against the true owner(t). An attempted sale of goods which does not affect the property, the seller having no title and the sale not being in market overt, nor yet the possession, there being no delivery, is not a conversion. If undertaken in good faith, it would seem not to be actionable at all; otherwise it might come Edition: current; Page: [321] within the analogy of slander of title. But if a wrongful sale is followed up by delivery, both the seller(u) and the buyer(x) are guilty of a conversion. Again, a mere collateral breach of contract in dealing with goods entrusted to one is not a conversion; as where the master of a ship would not sign a bill of lading except with special terms which he had no right to require, but took the cargo to the proper port and was willing to deliver it, on payment of freight, to the proper consignee(y).
Dealings under authority of apparent owner. A merely ministerial dealing with goods, at the request of an apparent owner having the actual control of them, appears not to be conversion(z); but the extent of this limitation or exception is not precisely defined. The point is handled in the opinion delivered to the House of Lords in Hollins v. Fowler(a) by Lord Blackburn, then a Justice of the Queen's Bench; an opinion which gives in a relatively small compass a lucid and instructive view of the whole theory of the action of trover. It is there said that "on principle, one who deals with goods at the request of the person who has the actual custody of them, in the bona fide belief that the custodian is the true owner, or has the authority of the true owner, should be excused for what he does if the act is of such a nature as would be excused if done by the authority of the Edition: current; Page: [322] person in possession(b), if he was a finder of the goods, or intrusted with their custody." This excludes from protection, and was intended to exclude, such acts as those of the defendants in the case then at bar: they had bought cotton, innocently and without negligence, from a holder who had obtained it by fraud, and had no title, and they had immediately resold it to a firm for whom they habitually acted as cotton brokers, not making any profit beyond a broker's commission. Still it appeared to the majority of the judges and to the House of Lords that the transaction was not a purchase on account of a certain customer as principal, but a purchase with a mere expectation of that customer (or some other customer) taking the goods; the defendants therefore exercised a real and effective though transitory dominion: and having thus assumed to dispose of the goods, they were liable to the true owner(c). So would the ultimate purchasers have been (though they bought and used the cotton in good faith), had the plaintiffs thought fit to sue them(d).
Acts of servants. But what of the servants of those purchasers, who handled the cotton under their authority and apparent title, and by making it into twist wholly changed its form? Assuredly this was conversion enough in fact and in the common sense of the word; but was it a conversion in law? Could any one of the factory hands have been made the nominal defendant and liable for the whole value of the cotton? Or if a thief brings corn to a miller, and the miller, honestly taking him to be the true owner, grinds the corn Edition: current; Page: [323] into meal and delivers the meal to him without notice of his want of title; is the miller, or are his servants, liable to the true owner for the value of the corn? Lord Blackburn thought these questions open and doubtful(e). There appears to be nothing in the authorities to prevent it from being excusable to deal with goods merely as the servant or agent of an apparent owner in actual possession, or under a contract with such owner, according to the apparent owner's direction; neither the act done, nor the contract (if any), purporting to involve a transfer of the supposed property in the goods, and the ostensible owner's direction being one which he could lawfully give if he were really entitled to his apparent interest, and being obeyed in the honest(f) belief that he is so entitled. It might or might not be convenient to hold a person excused who in good faith assumes to dispose of goods as the servant and under the authority and for the benefit of a person apparently entitled to possession but not already in possession. But this could not be done without overruling accepted authorities(g).
Redelivery by bailees. A bailee is prima facie estopped as between himself and the bailor from disputing the bailor's title(h). Hence, as he cannot be liable to two adverse claimants at once, he is also justified in redelivering to the bailor in pursuance of Edition: current; Page: [324] his employment, so long as he has not notice (or rather is not under the effective pressure)(h) of any paramount claim: it is only when he is in danger of such a claim that he is not bound to redeliver to the bailor(i). When there are really conflicting claims, the contract of bailment does not prevent a bailee from taking interpleader proceedings(k). This case evidently falls within the principle suggested by Lord Blackburn; but the rules depend on the special character of a bailee's contract.
Abuse of limited interest. Where a bailee has an interest of his own in the goods (as in the common cases of hiring and pledge) and under colour of that interest deals with the goods in excess of his right, questions of another kind arise. Any excess whatever by the possessor of his rights under his contract with the owner will of course be a breach of contract, and it may be a wrong. But it will not be the wrong of conversion unless the possessor's dealing is "wholly inconsistent with the contract under which he had the limited interest," as if a hirer for example destroys or sells the goods(l). That is a conversion, for it is deemed to be a repudiation of the contract, so that the owner who has parted with possession for a limited purpose is by the wrongful act itself restored to the immediate right of possession, and becomes the effectual "true owner" capable of suing for Edition: current; Page: [325] the goods or their value. But a merely irregular exercise of power, as a sub-pledge(m) or a premature sale(n), is not a conversion; it is at most a wrong done to the reversionary interest of an owner out of possession, and that owner must show that he is really damnified(o).
The technical distinction between an action of detinue or trover and a special action on the case here corresponds to the substantial and permanent difference between a wrongful act for which the defendant's rightful possession is merely the opportunity, and a more or less plausible abuse of the right itself.
The case of a common law lien, which gives no power of disposal at all, is different; there the holder's only right is to keep possession until his claim is satisfied. If he parts with possession, his right is gone, and his attempted disposal merely wrongful, and therefore he is liable for the full value(p). But a seller remaining in possession who re-sells before the buyer is in default is liable to the buyer only for the damage really sustained, that is, the amount (if any) by which the market price of the goods, at the time when the seller ought to have delivered them, exceeds the contract price(q). The seller cannot sue the buyer for Edition: current; Page: [326] the price of the goods, and if the buyer could recover the full value from the seller he would get it without any consideration: the real substance of the cause of action is the breach of contract, which is to be compensated according to the actual damage(r). A mortgagor having the possession and use of goods under covenants entitling him thereto for a certain time, determinable by default after notice, is virtually a bailee for a term, and, like bailees in general, may be guilty of conversion by an absolute disposal of the goods; and so may assignees claiming through him with no better title than his own; the point being, as in the other cases, that the act is entirely inconsistent with the terms of the bailment(s). One may be allowed to doubt, with Lord Blackburn, whether these fine distinctions have done much good, and to wish "it had been originally determined that even in such cases the owner should bring a special action on the case and recover the damage which he actually sustained"(t). Certainly the law would have been simpler, perhaps it would have been juster. It may not be beyond the power of the House of Lords or the Court of Appeal to simplify it even now; but our business is to take account of the authorities as they stand. And, as they stand, we have to distinguish between—
Conversion by estoppel. A man may be liable by estoppel as for the conversion of goods which he has represented to be in his possession or control, although in fact they were not so at any time when the plaintiff was entitled to possession(u). And he may be liable for conversion by refusal to deliver, when he has had possession and has wrongfully delivered the goods to a person having no title. He cannot deliver to the person entitled when the demand is made, but, having disabled himself by his own wrong, he is in the same position as if he still had the goods and refused to deliver(x).
Trespasses between tenants in common. As between tenants in common of either land or chattels there cannot be trespass unless the act amounts to an actual ouster, i.e. dispossession. Short of that "trespass will not lie by the one against the other so far as the land is concerned"(y). In the same way acts of legitimate Edition: current; Page: [328] use of the common property cannot become a conversion through subsequent misappropriation, though the form in which the property exists may be wholly converted, in a wider sense, into other forms. There is no wrong to the co-tenant's right of property until there is an act inconsistent with the enjoyment of the property by both. For every tenant or owner in common is equally entitled to the occupation and use of the tenement or property(z); he can therefore become a trespasser only by the manifest assumption of an exclusive and hostile possession. It was for some time doubted whether even an actual expulsion of one tenant in common by another were a trespass; but the law was settled, in the latest period of the old forms of pleading, that it is(a). At first sight this seems an exception to the rule that a person who is lawfully in possession cannot commit trespass: but it is not so, for a tenant in common has legal possession only of his own share. Acts which involve the destruction of the property held in common, such as digging up and carrying away the soil, are deemed to include ouster(b); unless, of course, the very nature of the property (a coal-mine for example) be such that the working out of it is the natural and necessary course of use and enjoyment, in which case the working is treated as rightfully undertaken for the benefit of all entitled, and there is no question of trespass to property, but only, if dispute arises, of accounting for the proceeds(c).
The normal rights of co-owners as to possession and use may be modified by contract. One of them may thus have the exclusive right to possess the chattel, and the other Edition: current; Page: [329] may have temporary possession or custody, as his bailee or servant, without the power of conferring any possessory right on a third person even as to his own share. In Nyberg v. Handelaar(d), A. had sold a half share of a valuable chattel to B., on the terms that A. should retain possession until the chattel (a gold enamel box) could be sold for their common benefit. Afterwards A. let B. have the box to take it to an auction room. Then B., thus having manual possession of the box, delivered it to Z. by way of pledge for a debt of his own. The Court of Appeal held that Z. had no defence to an action by A. The judgments proceed on the assumption that B., while remaining owner in common as to half the property, had acquired possession only as bailee for a special purpose, and his wrongful dealing with it determined the bailment, and re-vested A.'s right to immediate possession(e).
Rights of de facto possessor against strangers. An important extension of legal protection and remedies has yet to be noticed. Trespass and other violations of possessory rights can be committed not only against the person who is lawfully in possession, but against any person who has legal possession, whether rightful in its origin or not, so long as the intruder cannot justify his act under a better title. A mere stranger cannot be heard to say that one whose possession he has violated was not entitled to possess. Unless and until a superior title or Edition: current; Page: [330] justification is shown, existing legal possession is not only presumptive but conclusive evidence of the right to possess. Sometimes mere detention may be sufficient: but on principle it seems more correct to say that physical control or occupation is prima facie evidence that the owner is in exercise (on his own behalf or on that of another) of an actual legal possession, and then, if the contrary does not appear, the incidents of legal possession follow. The practical result is that an outstanding claim of a third party (jus tertii, as it is called) cannot be set up to excuse either trespass or conversion: "against a wrong-doer, possession is a title": "any possession is a legal possession against a wrong-doer": or, as the Roman maxim runs, "adversus extraneos vitiosa possessio prodesse solet"(f). As regards real property, a possession commencing by trespass can be defended against a stranger not only by the first wrongful occupier, but by those claiming through him; in fact it is a good root of title as against every one except the person really entitled(g); and ultimately, by the operation of the Statutes of Limitation, it may become so as against him also.
The authorities do not clearly decide, but seem to imply, that it would make no difference if the de facto possession Edition: current; Page: [331] violated by the defendant were not only without title, but obviously wrongful. But the rule is in aid of de facto possession only. It will not help a claimant who has been in possession but has been dispossessed in a lawful manner and has not any right to possess(h).
This rule in favour of possessors is fundamental in both civil and criminal jurisdiction. It is indifferent for most practical purposes whether we deem the reason of the law to be that the existing possession is prima facie evidence of ownership or of the right to possess—"the presumption of law is that the person who has possession has the property"(i):—or, that for the sake of public peace and security, and as "an extension of that protection which the law throws around the person"(k), the existing possession is protected, without regard to its origin, against all men who cannot make out a better right:—or say(l) that the law protects possession for the sake of true owners, and to relieve them from the vexatious burden of continual proof of title, but cannot do this effectually without protecting wrongful possessors also. Such considerations may be guides and aids in the future development of the law, but none of them will adequately explain how or why it came to be what it is.Edition: current; Page: [332]
Rights of owner entitled to resume possession. Again, as de facto possession is thus protected, so de jure possession—if by that term we may designate an immediate right to possess when separated from actual legal possession—was even under the old system of pleading invested with the benefit of strictly possessory remedies; that is, an owner who had parted with possession, but was entitled to resume it at will, could sue in trespass for a disturbance by a stranger. Such is the case of a landlord where the tenancy is at will(m), or of a bailor where the bailment is revocable at will, or on a condition that can be satisfied at will; which last case includes that of a trustee of chattels remaining in the control and enjoyment of the cestui que trust, for the relation is that of bailment at will as regards the legal interest(n). In this way the same act may be a trespass both against the actual possessor and against the person entitled to resume possession. "He who has the property may have a writ of trespass, and he who has the custody another writ of trespass"(o). "If I let my land at will, and a stranger enters and digs in the land, the tenant may bring trespass for his loss, and I may bring trespass for the loss and destruction of my land"(m). And a lessor or bailor at will might have an action of trespass vi et armis against the lessee or bailee himself where the latter had abused the subject-matter in a manner so inconsistent with his contract as to amount to a determination of the letting or bailment. "If tenant at will commit voluntary waste, as in pulling down of houses, or in felling of trees, it is said that the lessor shall have an action of trespass for this against the lessee. As if I lend to one my sheep to tathe his land, or my oxen to Edition: current; Page: [333] plow the land, and he killeth my cattle, I may well have an action of trespass against him notwithstanding the lending"(p).
An exclusive right of appropriating things in which property is acquired only by capture is on the same footing in respect of remedies as actual possession(q).
Rights of derivative possessors. Derivative possession is equally protected, through whatever number of removes it may have to be traced from the owner in possession, who (by modern lawyers at any rate) is assumed as the normal root of title. It may happen that a bailee delivers lawful possession to a third person, to hold as under-bailee from himself, or else as immediate bailee from the true owner: nay more, he may re-deliver possession to the bailor for a limited purpose, so that the bailor has possession and is entitled to possess, not in his original right, but in a subordinate right derived from his own bailee(r). Such a right, while it exists, is as fully protected as the primary right of the owner would have been, or the secondary right of the bailee would be.
Possession derived through trespasser. Troublesome questions were raised under the old law by the position of a person who had got possession of goods through delivery made by a mere trespasser or by an originally lawful possessor acting in excess of his right. One who receives from a trespasser, even with full knowledge, does not himself become a trespasser against the true owner, as he has not violated an existing lawful possession(s). The best proof that such is the law is the Edition: current; Page: [334] existence of the offence of receiving stolen goods as distinct from theft; if receiving from a trespasser made one a trespasser, the receipt of stolen goods with the intention of depriving the true owner of them would have been larceny at common law. Similarly where a bailee wrongfully delivers the goods over to a stranger; though the bailee's mere assent will not prevent a wrongful taking by the stranger from being a trespass(t).
The old law of real property was even more favourable to persons claiming through a disseisor; but it would be useless to give details here. At the present day the old forms of action are almost everywhere abolished; and it is quite certain that the possessor under a wrongful title, even if he is himself acting in good faith, is by the common law liable in some form to the true owner(u), and in the case of goods must submit to recapture if the owner can and will retake them(x). In the theoretically possible case of a series of changes of possession by independent trespasses, it would seem that every successive wrong-doer is a trespasser only as against his immediate predecessor, whose de facto possession he disturbed: though as regards land exceptions to this principle, the extent of which is not free from doubt, were introduced by the doctrine of "entry by relation" and the practice as to recovery of mesne profits. But this too is now, as regards civil liability, a matter of mere curiosity(y).
Violation of incorporeal rights. Easements and other incorporeal rights in property, "rather a fringe to property than property itself" as they have been ingeniously called(z), are not capable in an exact sense of being possessed. The enjoyment which may in time ripen into an easement is not possession, and gives no possessory right before the due time is fulfilled: "a man who has used a way ten years without title cannot sue even a stranger for stopping it"(a). The only possession that can come in question is the possession of the dominant tenement itself, the texture of legal rights and powers to which the "fringe" is incident. Nevertheless disturbance of easements and the like, as completely existing rights of use and enjoyment, is a wrong in the nature of trespass, and remediable by action without any allegation or proof of specific damage(b); the action was on the case under the old forms of pleading, since trespass was technically impossible, though the act of disturbance might happen to include a distinct trespass of some kind, for which trespass would lie at the plaintiff's option.
To consider what amounts to the disturbance of rights in re aliena is in effect to consider the nature and extent of Edition: current; Page: [336] the rights themselves(c), and this does not enter into our plan, save so far as such matters come under the head of Nuisance, to which a separate chapter is given.
Franchises and incorporeal rights of the like nature, as patent and copyrights, present something more akin to possession, for their essence is exclusiveness; and indeed trespass was the proper remedy for the disturbance of a strictly exclusive right. "Trespass lies for breaking and entering a several fishery, though no fish are taken." And so it has always been held of a free warren(d). But the same remark applies; in almost every disputed case the question is of defining the right itself, or the conditions of the right(c); and de facto enjoyment does not even provisionally create any substantive right, but is material only as an incident in the proof of title.
Licence. Acts of interference with land or goods may be justified by the consent of the occupier or owner; or they may be justified or excused (sometimes excused rather than justified, as we shall see) by the authority of the law. That Edition: current; Page: [337] consent which, without passing any interest in the property to which it relates, merely prevents the acts for which consent is given from being wrongful, is called a licence. There may be licences not affecting the use of property at all, and on the other hand a licence may be so connected with the transfer of property as to be in fact inseparable from it.
"A dispensation or licence properly passeth no interest, nor alters or transfers property in anything, but only makes an action lawful, which without it had been unlawful. As a licence to go beyond the seas, to hunt in a man's park, to come into his house, are only actions which without licence had been unlawful. But a licence to hunt in a man's park and carry away the deer killed to his own use, to cut down a tree in a man's ground, and to carry it away the next day after to his own use, are licences as to the acts of hunting and cutting down the tree, but as to the carrying away of the deer killed and tree cut down they are grants. So to licence a man to eat my meat, or to fire the wood in my chimney to warm him by; as to the actions of eating, firing my wood and warming him, they are licences: but it is consequent necessarily to those actions that my property be destroyed in the meat eaten, and in the wood burnt. So as in some cases by consequent and not directly, and as its effect, a dispensation or licence may destroy and alter property"(e).
Revocation of licence: distinction when coupled with interest. Generally speaking, a licence is a mere voluntary suspension of the licensor's right to treat certain acts as wrongful, comes to an end by any transfer of the property with respect to which the licence is given(f), and is revoked by signifying to the licensee that it is no longer Edition: current; Page: [338] the licensor's will to allow the acts permitted by the licence. The revocation of a licence is in itself no less effectual though it may be a breach of contract. If the owner of land or a building admits people thereto on payment, as spectators of an entertainment or the like, it may be a breach of contract to require a person who has duly paid his money and entered to go out, but a person so required has no title to stay, and if he persists in staying he is a trespasser. His only right is to sue on the contract(f): when, indeed, he may get an injunction, and so be indirectly restored to the enjoyment of the licence(g). But if a licence is part of a transaction whereby a lawful interest in some property, besides that which is the immediate subject of the licence, is conferred on the licensee, and the licence is necessary to his enjoyment of that interest, the licence is said to be "coupled with an interest" and cannot be revoked until its purpose is fulfilled: nay more, where the grant obviously cannot be enjoyed without an incidental licence, the law will annex the necessary licence to the grant. "A mere licence is revocable; but that which is called a licence is often something more than a licence; it often comprises or is connected with a grant, and then the party who has given it cannot in general revoke it so as to defeat his grant to which it was incident"(h). Thus the sale of a Edition: current; Page: [339] standing crop or of growing trees imports a licence to the buyer to enter on the land so far and so often as reasonably necessary for cutting and carrying off the crop or the trees, and the licence cannot be revoked until the agreed time, if any, or otherwise a reasonable time for that purpose has elapsed(i). The diversity to be noted between licence and grant is of respectable antiquity. In 1460 the defendant in an action of trespass set up a right of common; the plaintiff said an excessive number of beasts were put in; the defendant said this was by licence of the plaintiff; to which the plaintiff said the licence was revoked before the trespass complained of; Billing, then king's serjeant, afterwards Chief Justice of the King's Bench under Edward IV., argued that a licence may be revoked at will even if expressed to be for a term, and this seems to have so much impressed the Court that the defendant, rather than take the risk of demurring, alleged a grant: the reporter's note shows that he thought the point new and interesting(k). But a licensee who has entered or placed goods on land under a revocable licence is entitled to have notice of revocation and a reasonable time to quit or remove his goods(l).
Executed licences. Again, if the acts licensed be such as have permanent results, as in altering the condition of land belonging to the licensee in a manner which, but for the licence, would be a nuisance to adjacent land of the licensor; there the licensor cannot, by merely revoking the licence, cast upon the licensee the burden of restoring the former state of things. A licence is in its nature revocable(m), but the Edition: current; Page: [340] revocation will not make it a trespass to leave things as the execution of the licence has made them. In this sense it is said that "a licence executed is not countermandable"(n). When a licence to do a particular thing once for all has been executed, there is nothing left to revoke.
Whether and how far the licensor can get rid of the consequences if he mislikes them afterwards is another and distinct inquiry, which can be dealt with only by considering what those consequences are. He may doubtless get rid of them at his own charges if he lawfully can; but he cannot call on the licensee to take any active steps unless under some right expressly created or reserved.
For this purpose, therefore, there is a material difference between "a licence to do acts which consist in repetition, as to walk in a park, to use a carriage-way, to fish in the waters of another, or the like," which may be countermanded without putting the licensee in any worse position than before the licence was granted, and "a licence to construct a work which is attended with expense to the party using the licence, so that, after the same is countermanded, the party to whom it was granted may sustain a heavy loss"(o). And this rule is as binding on a licensor's successors in title as on himself(p). But it is not applicable (in this country at any rate) to the extent of creating in or over land of the licensor an easement or other interest capable of being created only by deed(q).
In those cases, however, the licensee is not necessarily without remedy, for the facts may be such as to confer on Edition: current; Page: [341] him an interest which can be made good by way of equitable estoppel(r). This form of remedy has been extensively applied in the United States to meet the hardship caused by untimely revocation of parol licences to erect dams, divert water-courses, and the like(s).
The case of a contract to grant an easement or other interest in land must be carefully distinguished when it occurs(t).
Expression of licensor's will. The grant or revocation of a licence may be either by express words or by any act sufficiently signifying the licensor's will: if a man has leave and licence to pass through a certain gate, the licence is as effectually revoked by locking the gate as by a formal notice(u). In the common intercourse of life between friends and neighbours tacit licences are constantly given and acted on.
Distinction from grant as regards strangers. We shall have something to say in another connexion(x) of the rights—or rather want of rights—of a "bare licensee." Here we may add that a licence, being only a personal right—or rather a waiver of the licensor's rights—is not assignable, and confers no right against any third person. If a so-called licence does operate to confer an exclusive right capable of being protected against a stranger, it must be that there is more than a licence, namely the grant of an interest or easement. And the question of grant or licence may further depend on the Edition: current; Page: [342] question whether the specified mode of use or enjoyment is known to the law as a substantive right or interest(y): a question that may be difficult. But it is submitted that on principle the distinction is clear. I call at a friend's house; a contractor who is doing some work on adjacent land has encumbered my friend's drive with rubbish; can it be said that this is a wrong to me without special damage? With such damage, indeed, it is(z), but only because a stranger cannot justify that which the occupier himself could not have justified. The licence is material only as showing that I was not a wrong-doer myself; the complaint is founded on actual and specific injury, not on a quasi trespass. Our law of trespass is not so eminently reasonable that one need be anxious to extend to licensees the very large rights which it gives to owners and occupiers.
Justification by law. As to justification by authority of the law, this is of two kinds:
1. In favour of a true owner against a wrongful possessor; under this head come re-entry on land and retaking of goods.
2. In favour of a paramount right conferred by law against the rightful possessor; which may be in the execution of legal process, in the assertion or defence of private right, or in some cases by reason of necessity.
Re-entry: herein of forcible entry. A person entitled to the possession of lands or tenements does no wrong to the person wrongfully in possession by entering upon him; and it is said that by the old common law he might have entered by force. But forcible entry is Edition: current; Page: [343] an offence under the statute of 5 Ric. II. (ad 1381), which provided that "none from henceforth make any entry into any lands and tenements, but in case where entry is given by the law, and in such case not with strong hand nor with multitude of people, but only in peaceable and easy [the true reading of the Parliament Roll appears to be 'lisible, aisee, & peisible'] manner." This statute is still in force here, and "has been re-enacted in the several American States, or recognized as a part of the common law"(a). The offence is equally committed whether the person who enters by force is entitled to possession or not: but opinions have differed as to the effect of the statute in a court of civil jurisdiction. It has been held that a rightful owner who enters by force is not a trespasser, as regards the entry itself, but is liable for any independent act done by him in the course of his entry which is on the face of it wrongful, and could be justified only by a lawful possession(b); and, it should seem, for any other consequential damage, within the general limit of natural and probable consequence, distinguishable from the very act of eviction. This is a rather subtle result, and is further complicated by the rule of law which attaches legal possession to physical control, acquired even for a very short time, so it be "definite and appreciable"(c), by the rightful owner. A., being entitled to immediate possession (say as a mortgagee having the legal estate) effects an actual entry by taking off a lock, without having given any notice to quit to B. the precarious occupier; thus, "in a very Edition: current; Page: [344] rough and uncourteous way," that is, peaceably but only just peaceably, he gets possession: once gotten, however, his possession is both legal and rightful. If therefore B. turns him out again by force, there is reasonable and probable cause to indict B. for a forcible entry. So the House of Lords has decided(d). Nevertheless, according to later judgments, delivered indeed in a court of first instance, but one of them after consideration, and both learned and careful, A. commits a trespass if, being in possession by a forcible entry, he turns out B.(e). Moreover, the old authorities say that a forcible turning out of the person in present possession is itself a forcible entry, though the actual ingress were without violence. "He that entereth in a peaceable show (as the door being either open or but closed with a latch only), and yet when he is come in useth violence, and throweth out such as he findeth in the place, he (I say) shall not be excused: because his entry is not consummate by the only putting of his foot over the threshold, but by the action and demeanour that he offereth when he is come into the house"(f). And under the old statutes and practice, "if A. shall disseise B. of his land, and B. do enter again, and put out A. with force, A. shall be restored to his possession by the help of the justices of the peace, although his first entry were utterly wrongful: and (notwithstanding the same restitution is made) yet B. may well have an assize against A., or may enter peaceably upon him again"(g).
But old authorities also distinctly say that no action is Edition: current; Page: [345] given by the statute to a tenant who is put out with force by the person really entitled, "because that that entry is not any disseisin of him"(h). There is nothing in them to countenance the notion of the personal expulsion being a distinct wrong. The opinion of Parke and Alderson was in accordance with this(i), and the decision from which they dissented is reconcileable with the old books only by the ingenious distinction—certainly not made by the majority(k)—of collateral wrongs from the forcible eviction itself. The correct view seems to be that the possession of a rightful owner gained by forcible entry is lawful as between the parties, but he shall be punished for the breach of the peace by losing it, besides making a fine to the king. If the latest decisions are correct, the dispossessed intruder might nevertheless have had a civil remedy in some form (by special action on the case, it would seem) for incidental injuries to person or goods, provided that they were incidental to the unlawful force and not to the entry in itself(l). This refinement does not appear to have occurred to any of the old pleaders.
Fresh reentry on trespasser. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner. His condition is quite different from that of a rightful owner out of possession, who can recover legal possession by any kind of effective interruption of the intruder's actual and exclusive control. A person who had been Edition: current; Page: [346] dismissed from the office of schoolmaster and had given up possession of a room occupied by him in virtue of his office, but had afterwards re-entered and occupied for eleven days, was held not entitled to sue in trespass for an expulsion by the trustees at the end of that time. "A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understands by possession against the person whom he ejects, and drive him to produce his title, if he can without delay reinstate himself in his former possession"(l). There must be not only occupation, but effective occupation, for the acquisition of possessory rights. "In determining whether a sufficient possession was taken, much more unequivocal acts must be proved when the person who is said to have taken possession is a mere wrong-doer than when he has a right under his contract to take possession"(m). And unless and until possession has been acquired, the very continuance of the state of things which constitutes the trespass is a new trespass at every moment(n). We shall see that this has material consequences as regards the determination of a cause of excuse.
Recaption of goods. As regards goods which have been wrongfully taken, the taker is a trespasser all the time that his wrongful possession continues, so much so that "the removal of goods, wrongfully taken at first, from one place to another, is held to be a several trespass at each place"(o), and a supervening animus furandi at any moment of the continuing Edition: current; Page: [347] trespassory possession will complete the offence of larceny and make the trespasser a thief(p). Accordingly the true owner may retake the goods if he can, even from an innocent third person into whose hands they have come; and, as there is nothing in this case answering to the statutes of forcible entry, he may use (it is said) whatever force is reasonably necessary for the recaption(q). He may also enter on the first taker's land for the purpose of recapture if the taker has put the goods there(r); for they came there by the occupier's own wrong(s); but he cannot enter on a third person's land unless, it is said, the original taking was felonious(t), or perhaps, as it has been suggested, after the goods have been claimed and the occupier of the land has refused to deliver them(u). Possession is much more easily changed in the case of goods than in the case of land; a transitory and almost instantaneous control has often, in criminal courts, been held to amount to asportation. The difference may have been sharpened by the rules of criminal justice, but in a general way it lies rather in the nature of the facts than in any arbitrary divergence of legal principles in dealing with immoveable and moveable property.Edition: current; Page: [348]
Process of law: breaking doors. One of the most important heads of justification under a paramount right is the execution of legal process. The mere taking and dealing with that which the law commands to be so taken and dealt with, be it the possession of land or goods, or both possession and property of goods, is of course no wrong; and in particular if possession of a house cannot be delivered in obedience to a writ without breaking the house open, broken it must be(x). It is equally settled on the other hand that "the sheriff must at his peril seize the goods of the party against whom the writ issues," and not any other goods which are wrongly supposed to be his; even unavoidable mistake is no excuse(y). More special rules have been laid down as to the extent to which private property which is not itself the immediate object of the process may be invaded in executing the command of the law. The broad distinction is that outer doors may not be broken in execution of process at the suit of a private person; but at the suit of the Crown, or in execution of process for contempt of a House of Parliament(z), or of a Superior Court, they may, and must; and this, in the latter case, though the contempt consist in disobedience to an order made in a private suit(a). The authorities referred to will guide the reader, if desired, to further details.
Constables, revenue officers, and other public servants, and in some cases private persons, are authorized by divers Edition: current; Page: [349] statutes to enter on lands and into houses for divers purposes, with a view to the discovery or prevention of crime, or of frauds upon the public revenue. We shall not attempt to collect these provisions.
Distress. The right of distress, where it exists, justifies the taking of goods from the true owner: it seems that the distrainor, unlike a sheriff taking goods in execution, does not acquire possession, the goods being "in the custody of the law"(b). Most of the practical importance of the subject is in connexion with the law of landlord and tenant, and we shall not enter here on the learning of distress for rent and other charges on land(c).
Damage feasant. Distress damage feasant is the taking by an occupier of land of chattels (commonly but not necessarily animals)(d) found encumbering or doing damage on the land, either to the land itself or to chattels on the land(e). The right given by the law is therefore a right of self-protection against the continuance of a trespass already commenced. It must be a manifest trespass; distress damage feasant is not allowed against a party having any colour of right, e.g., one commoner cannot distrain upon another commoner for surcharging(f). And where a man is lawfully Edition: current; Page: [350] driving cattle along a highway, and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction(g). And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice(h). In one respect distress damage feasant is more favoured than distress for rent. "For a rent or service the lord cannot distreine in the night, but in the day time: and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them"(i). But in other respects "damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act," and held only as a pledge for its own individual trespass, and other requirements observed. Distress damage feasant suspends the right of action for the trespass(k).
The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one's election(l), or to remove inanimate chattels and replace them on the owner's land(m).
Entry of distrainor. Entry to take a distress must be peaceable and without breaking in; it is not lawful to open a window, though Edition: current; Page: [351] not fastened, and enter thereby(n). Distrainors for rent have been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting.
In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifications: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof(o).
Trespasses justified by necessity. Finally there are cases in which entry on land without consent is excused by the necessity of self-preservation, or the defence of the realm(p), or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse(q). Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefore he took it and carried it to the plaintiff's barn to save it: to Edition: current; Page: [352] which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or "by reason of a condition in law"; neither of which grounds is present here; taking for the true owner's benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably)(r), and entering in war time to make fortifications. "The defendant's intention," said Rede C. J., "is material in felony but not in trespass; and here it is not enough that he acted for the plaintiff's good." A stranger's beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. "So where my beasts are doing damage in another man's land, I may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another man drive my horses into a stranger's land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in a stranger's wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good"(s). Edition: current; Page: [353] Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land(t).
Foxhunting not privileged. At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist(u). Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit.
Trespass ab initio. There is a curious and rather subtle distinction between justification by consent and justification or excuse under authority of law. A possessor by consent, or a licensee, may commit a wrong by abusing his power, but (subject to the peculiar exception in the case of letting or bailment at will mentioned above)(x) he is not a trespasser. If I lend you a horse to ride to York, and you ride to Carlisle, I shall not have (under the old forms of pleading) a general action of trespass, but an action on the case. So if a lessee for years holds over, he is not a trespasser, because his entry was authorized by the lessor(y). But Edition: current; Page: [354] "when entry, authority, or licence is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio," that is, the authority or justification is not only determined, but treated as if it had never existed. "The law gives authority to enter into a common inn or tavern(z); so to the lord to distrain; to the owner of the ground to distrain damage feasant; to him in reversion to see if waste be done; to the commoner to enter upon the land to see his cattle; and such like . . . . But if he who enters into the inn or tavern doth a trespass, as if he carries away anything; or if the lord who distrains for rent(a), or the owner for damage feasant, works or kills the distress; or if he who enters to see waste breaks the house or stays there all night; or if the commoner cuts down a tree; in these and the like cases the law adjudges that he entered for that purpose, and because the act which demonstrates it is a trespass, he shall be a trespasser ab initio"(b). Or to state it less artificially, the effect of an authority given by law without the owner's consent is to protect the person exercising that authority from being dealt with as a trespasser so long—but so long only—as the authority is not abused. He is never doing a fully lawful act: he is rather an excusable trespasser, and becomes a trespasser without excuse if he exceeds his authority(c): "it shall be adjudged against the peace"(d). This doctrine has been applied in modern times to the lord Edition: current; Page: [355] of a manor taking an estray(e), and to a sheriff remaining in a house in possession of goods taken in execution for an unreasonably long time(f). It is applicable only when there has been some kind of active wrong-doing; not when there has been a mere refusal to do something one ought to do—as to pay for one's drink at an inn(g) or deliver up a distress upon a proper tender of the rent due(h). "If I distrain for rent, and afterwards the termor offers me the rent and the arrears, and I withhold the distress from him, yet he shall not have an action of trespass against me, but detinue, because it was lawful at the beginning, when I took the distress; but if I kill them or work them in my own plow, he shall have an action of trespass"(i). But it is to be observed that retaining legal possession after the expiration of authority has been held equivalent to a new taking, and therefore a positive act: hence (it seems) the distinction between the liability of a sheriff, who takes possession of the execution debtor's goods, and of a distrainor; the latter only takes the goods into "the custody of the law," and "the goods being in the custody of the law, the distrainor is under no legal obligation actively to re-deliver them"(k). Formerly these refinements were import